High crimes, not misdemeanors: deterring the production of unsafe food.

In the fall of 2008, Minnesota public health officials became alarmed by an unusually high number of illnesses and deaths caused by salmonella poisoning. Federal and state regulators and the news media eventually traced the outbreak back to products supplied by the Peanut Corporation of America (PCA). Employees shipped batches that tested positive for salmonella from a plant with a leaking roof, mold growing on ceilings and walls, rodent infestation, filthy processing receptacles, and feathers and feces in the air filtration system. Under an agreement with the Food and Drug Administration (FDA), Georgia state inspectors visited the PCA plant nine times in 2006-2008 but took no effective action to terminate any of these conditions. When called to testify before Congress, Stewart Parnell, PCA’s chief executive officer, invoked his Fifth Amendment rights, and the company itself is under criminal investigation. Food-borne illness causes 5,000 deaths, hospitalizes 325,000, and sickens 76 million annually. Incidents like those at PCA have spurred Congress to draft comprehensive legislation to strengthen FDA’s food safety programs, which cover 80 percent of the American diet. (The Department of Agriculture has jurisdiction over meat and poultry.) Yet under the leading piece of Senate legislation, such egregious conduct would remain punishable as a misdemeanor, triggering at most 0-6 months in jail if the Department of Justice even considered prosecuting those crimes. Industry groups like the Grocery Manufacturers of America oppose enhanced criminal and civil penalties, urging the FDA to focus on cooperative efforts to achieve compliance. The paper argues that the nation cannot afford to forego the substantial deterrent effects provided by severe criminal penalties, especially under the “responsible corporate officer” doctrine that applies to violations of the Food, Drug, and Cosmetics Act. That doctrine holds responsible any corporate officer who should know illegal practices are occurring and is in a position to stop them. In an era when regulatory agencies responsible for protecting health and safety cannot afford to inspect their way out of trouble, high profile enforcement is critical to efforts to improve the safety of the food supply. Enron is indicative of nothing. There’s always people who do something they shouldn’t and you’ll never be able to legislate against it. This stuff happens. Alan Greenberg, Chairman, Executive Committee, Bear Stearns 1 Rena Steinzor is a professor at the University of Maryland School of Law and the president of the Center for Progressive Reform, www.progressivereform.org. She appreciates the energetic research assistance provided by Ryan Sweigard and James Getz and the expert editing provided by research librarian Susan McCarty. 2 Steven Pearlstein, Debating the Enron Effect; Business World Divided on Problem and Solutions, WASH. POST, Feb. 17, 2002, at A1. October 27, 2009 High Crimes Not Misdemeanors: Deterring the Production of Unsafe Food This paper is slated for publication in Health Matrix, a publication of Case Western Law School. © 2009 by Rena Steinzor—please do not cite, quote, or copy without author’s permission 2 FDA regulates food manufacturers’ safety practices by relying on companies’ self-interest in producing safe products, and by working with the industry to improve production practices. Geoffrey Becker, Congressional Research Service The FDA needs the ability to criminally prosecute quickly and effectively when needed. If someone is convicted of a felony in the criminal justice system, they go to prison and are not allowed to vote. But, if you poison Americans via their food supply what are the consequences? You pay a fine and keep producing? Is this right? Is this what we as Americans want? Peter Hurley, police officer, Portland, Oregon and father of surviving salmonella-poisoned child