For food producers and those concerned about what I wrote here recently about food producers having go to jail jobs, food safety attorney Bill Marler has provided some very helpful background information. In this post he details a number of major food safety cases, some of which resulted in food executives being criminally prosecuted, paying big fines or even going to jail. But some did not.
Beyond being a very helpful listing, Mr. Marler asks a very important question: why are some chosen for criminal prosecution and not others? Does it relate to the seriousness of the illnesses or the number of deaths involved? Is it brand visibility?
Admittedly, I have been a booster for increased food crime prosecutions – both misdemeanor and felony. In all the four cases above where prosecutions happened, I have helped prosecutors understand the science behind the outbreaks and explained to them the devastation suffered by the victims and families.
Yet, looking at the above outbreaks together, I find it a bit hard to parse out why some have been targeted – OK, perhaps the Parnell prosecution is a bit easier because it was so clearly intentional – and some have not, or at least not yet.
Honestly, what are the differences in prosecuting the Jensens, DeCosters and ConAgra and leaving the others – so far – unmolested by section 402(a)(4) of the FDCA? Is it the number of sick, the number of dead? Is it the economic consequences? What really are the criteria, or, should it simply be left to the discretion of the prosecutor as to who or what feels the sting of the criminal justice system?
It is time for prosecutors to set forth clear guidelines for who is prosecuted and who is not. People (and corporations if you do not quite agree with some who do not see the difference) should know what the rules are and how they are going to be enforced and that they will be enforced consistently and fairly.
Given the seriousness of food safety, there is little question that those grossly negligent, outrageously irresponsible or who show little or no regard for the consequences should be held accountable. Unfortunately, the way the law reads and the apparently random actions of prosecutors means that at least some who don’t fit that criteria can and will be prosecuted. There is something wrong with that.