Tuesday, November 17, 2009
Rena I. Steinzor (University of Maryland - School of Law) has posted High Crimes, Not Misdemeanors: Deterring the Production of Unsafe Food (Health Matrix: Journal of Law-Medicine, Vol. 19, No. 2, 2010) on SSRN. Here is the abstract:
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.
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.