A former quality assurance director at one of the world’s largest food manufacturing companies recently pled guilty to charges arising from his role in a 2018 Salmonella outbreak. The defendant pled guilty to three misdemeanor counts of causing the introduction into interstate commerce of adulterated food, allegedly contaminated Honey Smacks cereal. The company at which he was employed manufactured the cereal on behalf of its customer, Kellogg’s. The defendant, who is no longer employed with the company, was reportedly responsible for overseeing sanitation programs at an Illinois facility to which the outbreak was eventually traced.

According to the Department of Justice (“DOJ”), the defendant directed his employees to conceal (from Kellogg’s) information pertinent to potentially insanitary conditions at the Illinois facility, and also orchestrated a scheme to inappropriately alter pathogen monitoring programs. These actions, according to DOJ, likely contributed to the conditions that led to the outbreak. The outbreak investigation ultimately tied more than 130 cases of salmonella infection to the tainted cereal.

For years, my colleagues and I have been warning industry that the government has adopted a policy of vigorously pursuing and prosecuting food industry executives who fail to prevent the occurrence of insanitary conditions in the facilities they oversee. The charges that may result from intentional acts can, of course, carry severe penalties. But, even in the absence of any intentional wrongdoing, executives can still face misdemeanor charges under the so-called “Park Doctrine,” a legal doctrine which I have written about at length in this very column. Under the Doctrine, a food safety professional can be held criminally liable if he or she: (1) was aware of a condition that could lead to product contamination; (2) was in a position to eliminate the condition; and (3) failed to do so. DOJ and FDA themselves make this clear in a recent press release.

Assistant Attorney General Brian Boynton, who leads DOJ’s Civil Division, affirmed the government’s policy to pursue and prosecute executives whose failures lead to the sale and distribution of adulterated products. “Food safety professionals cannot conceal potentially dangerous problems from customers or government regulators,” he stated, warning that law enforcement would continue to hold food industry executives accountable for such violations. Likewise, the Special Agent in Charge of the investigation, Lynda M. Burdelik, of FDA’s Office of Criminal Investigations, reiterated, “Today’s announcement reinforces that if an individual violates food safety rules or conceals relevant information, we will seek to hold them accountable.” Citing the importance of keeping food safe, she noted, “The health of American consumers and the safety of our food are too important to be thwarted by the criminal acts of any individual or company.”

Again, none of us want to be responsible for causing an outbreak, nor do we ever want to find ourselves facing criminal charges and jail time. DOJ’s statements provide a stark reminder that, when a problem arises in our industry, we must act aggressively to resolve it, never to hide it. The food industry is filled with caring and thoughtful people dedicated to food safety. But, at the same time, we aren’t perfect. Sometimes, when faced with the stress of the job and a demanding c-suite, we find ourselves considering doing something that will probably be okay. Wishful thinking, however, is never a good strategy. Thus, if you ever find yourself in that position, ask yourself, “what would 12 jurors think?” If you do, you will always land on the right answer.

From breakfast to the Big House

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