March 6, 2021

Individuals and Companies Should be Prosecuted for Foodborne Outbreaks

Contact Fred PritzkerAs one of the few food safety lawyers in America, I’m often asked whether I believe that America’s food supply is the safest in the world. The short answer is: “I have no idea” – and if you’re one of the thousands of Americans sickened each year by foodborne illness, it’s no comfort knowing that some countries have food less safe than the product that shut down your kidneys or killed your loved one.

The real questions about food safety have nothing to do with overweening national pride. In fact, there are only two questions that make any sense at all: “Can our food system be safer?” and “What steps have to be taken to make it so?”

Since no one honestly doubts that our food safety system can and should be better, let me focus on answering the second question (based on what I’ve learned litigating the failures of companies implicated in foodborne illness outbreaks). I will address these issues in the weeks to come but begin with a deficiency I find particularly galling – the failure to prosecute individuals and companies responsible for outbreaks.

If while driving a car, I go too fast, take my eyes off the road or drive while intoxicated, and someone ends up paralyzed or dead, I’m going to be prosecuted. And I should be. So why should a food producer that ignores accepted principles of food safety (or, worse, the company’s own food safety systems) not have to fear criminal prosecution when scores of Americans are sickened or killed by the company’s egregious conduct?

I can think of a number of recent outbreaks – the Peanut Corporation of America Salmonella outbreak, the Jensen Farms Rocky Ford cantaloupe Listeria outbreak and the Wright County egg Salmonella outbreak – that may have warranted criminal prosecution. Sadly, it appears that, short of declaring a company’s intent to sicken as many folks as possible, miscreant food producers have nothing to fear.

That’s a shame as well as a double standard. You don’t have to intend to harm someone to be charged with any number of crimes. For example, many states, including my home state of Minnesota, make it a crime if a driver kills or injures another person while driving in a grossly negligent manner. Is a food producer’s gross negligence any less culpable if it results in scores of injuries and deaths?

Particularly in white collar cases, criminal prosecution is a powerful deterrent. I strongly believe that the officers of a food company will redouble food safety efforts if prosecution and accountability is a legitimate threat. Make examples of officers of meat companies that are repeatedly implicated in E. coli outbreaks and I can assure you that the industry (which is highly centralized) will get the message.

So why aren’t there more (or any, for that matter) prosecutions? Simply put, because there is not enough political will. A civil or criminal foodborne illness case is technical and demanding. Few prosecutors have any experience with foodborne illness cases and most prosecuting agencies are unwilling to commit the significant resources necessary to successfully pursue them. There are resource and staffing solutions to overcome these challenges, but the political capital necessary to make it happen just hasn’t been there. Until it is, prosecution is not a credible threat and thus, a primary deterrent to unsafe food practices is effectively off the table.

Fred Pritzker is a food safety attorney and publisher of Food Poisoning Bulletin. He can be reached at 888-377-8900.

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