The federal government has recently trained its most potent weapon—criminal prosecution—on the food and beverage industry, and the threat also affects companies that transport the industry’s products.
Two groundbreaking prosecutions in the food industry have occurred in the last year. One was the 76-count indictment against executives with Peanut Corporation of America (PCA), which was at the center of a 2009 Salmonella recall. PCA’s CEO faces 754 years in prison and $17 million in fines if convicted.
The second was the prosecution of two executives of a cantaloupe farm that was linked to a 2011 Listeria outbreak. They were charged with misdemeanors and faced up to 6 years in jail. They pled guilty and were sentenced in January. Significantly, there was reportedly no evidence that these executives knew about any adulteration of their cantaloupes prior to sale.
The same broad law used to prosecute food manufacturers—the federal Food Drug & Cosmetic Act—applies equally to companies that transport food.
The law makes it illegal to manufacture, introduce into commerce, deliver or receive any adulterated food item. A food is considered adulterated not only if it contains a substance that is harmful to health, but also if it has been prepared, packed or held under unsanitary conditions that could allow it to become contaminated.
Food distributors are vulnerable for merely delivering or receiving potentially spoiled food or for holding food cargo under anything other than pristine conditions. For example, a Pennsylvania trucking company and its owner were prosecuted for transporting adulterated milk in 2012.
Federal prosecutors can use a little-known rule to prosecute a responsible corporate official without proof that the official acted with intent or even negligence. This rule, known as the Park Doctrine, allows for criminal prosecution even if the official had no actual knowledge of or participation in the specific offense. This rule lay dormant for many years. But in the past 5 years, federal prosecutors have used it to target corporate officials in the pharmaceutical and food and beverage industries. And this is just one of the many rules hanging over the industry. Food safety and quality is governed by no less than 35 federal laws and regulations administered by 15 federal agencies spending an estimated $2 billion annually. These laws are constantly evolving, as are the agencies that enforce them.
The federal government proposed new safety rules for transported foods in January. These rules would require companies to conduct cleanliness inspections of vehicles before loading food that is not completely sealed, including certain fresh produce. They also would set certain standards for clean transportation practices, including how the transported food is refrigerated and how thoroughly vehicles are cleaned between loads.
Some specific risk areas for food transporters include: (1) maintaining proper temperatures for transport of certain foods and keeping records of these temperatures; (2) cleanliness of containers and vehicles that transport food; (3) thoroughness of cleaning vehicles between loads; (4) ensuring that food received is not already adulterated; and (5) salvage and/or disposal of rejected food shipments.
Companies that handle and transport food products can minimize risk by taking the following steps: (1) thoroughly review policies and procedures for compliance before a problem arises; (2) maintain good records; (3) train employees: (4) keep up-to-date on new rules that govern food transportation; and (5) cooperate fully with federal and state regulators.
R. Trent Taylor is a partner at McGuireWoods LLP and can be contacted at rtaylor@McGuireWoods.com.