Stepped up enforcement of criminal liability for operators was explored in the Dec. 4 Web seminar hosted by Irvine, Calif.-based Western Growers.
Moderated by Jason Resnick, vice president and general counsel for Western Growers, the web seminar featured Sarah Brew, Minneapolis-based partner with Faegre Baker Daniels LLP.
Attended by about 100 people, the seminar was titled “Criminal Liability for Food Safety Violations: Jensen Farms and the FDA’s Heightened Enforcement Efforts.”
The Food and Drug Administration told Congress in 2010 that it might increase misdemeanor prosecutions of food industry executives for violations of the federal Food Drug & Cosmetic Act, Brew said. In September, Eric and Ryan Jensen, owners of the Holly, Colo., farm, were charged with violating the FDCA by introducing adulterated cantaloupe into interstate commerce, implicated in the outbreak leading to 33 deaths.
The misdemeanor charges do not allege any criminal “intent,” but FDCA violations alone are sufficient for misdemeanor charges, according to Western Growers.
“I think the Jensen Farms case caused many growers to raise their eyebrows and try to understand what the potential criminal exposure could be for a food producer who unintentionally sells adulterated food,” Resnick said.
The Web seminar looked at the history and evolution of the Park Doctrine — which allows misdemeanor charges even though criminal intent is not evident — and its use in the Jensen Farms case.
Brew said the takeaway from the Web seminar is that FDA’s enforcement posture has changed.
“I think the main new development, and something that all growers, packers and food manufacturers should be aware of, is that Jensen Farms was charged criminally without having any intent to do anything wrong or any knowledge of any problems,” she said.
That means potential lawsuits, especially if injuries or death of consumers, occur.
Brew said the FDA is being more aggressive about pursing criminal charges and that trend will likely increase.
“Everyone has been aware that the Food Safety Modernization Act is going to change the game,” she said.
New rules require investment by industry to meet the demands, she said.
“The fact that you can be found strictly criminally liable is yet another reason to take the new regulations seriously, to start preparing now for what it looks FDA is going to require down the road and for investing in getting it right from the get go,” she said.
In particular, she advised to:
- Implement compliance programs at all levels;
- Ensure current food safety standards are up-to-date and followed
- Keep good records; and
- Train employees.