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Food Safety Added to Whistleblower Protections

FDA OSHA Whistleblower

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#1 MWidra

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Posted 30 March 2015 - 12:44 PM

Good article on this addition and a current news item.  It will be interesting to see how this plays out.

 

http://www.foodsafet...2/#.VRlBSE0tH3g

 

Martha


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#2 Simon

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Posted 30 March 2015 - 01:34 PM

Ouch that'll certainly help to drive up senior management commitment.

In the UK under health and safety law we have corporate manslaughter that can be used as a charge if a senior management is found to be criminally negligent in the death of an employee. Maybe it could be expanded to death caused by (lack of) food safety.

In the US does human safety and/or food safety (caused) deaths carry criminal charges that could be used against senior management?

If so the article you posted the other day about food safety lawyers becomes infinitely more relevant.


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#3 MWidra

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Posted 30 March 2015 - 02:22 PM

In the UK under health and safety law we have corporate manslaughter that can be used as a charge if a senior management is found to be criminally negligent in the death of an employee. Maybe it could be expanded to death caused by (lack of) food safety.

In the US does human safety and/or food safety (caused) deaths carry criminal charges that could be used against senior management?

If so the article you posted the other day about food safety lawyers becomes infinitely more relevant.

Simon, it would be interesting to see how the courts would extend the current manslaughter laws into the food safety domain.  Most crimes require intent, but you could say that if you deliberately violated food safety laws, you had to do it with intent.  And, no matter what happens, if you should have known the possible consequences of your actions, then the intent transfers.  As you get further and further away from the original actions, cause and effect becomes more difficult to prove beyond a reasonable doubt.  You've got to convince a jury that it all was due to the food safety issues.

 

States also have some form of negligent homicide, to different degrees, which could cover it as well.  I'm not sure of what the federal criminal code contains, there are so very few federal crimes.  Homicide is only a federal offense if it is the killing at a federal facility, of a federal employee (which is how the OK City bombers were tried in the federal court), or in an Indian Reservation.  I'm not sure, but if it happens during the commission of a federal crime, there may be jurisdiction there as well, but don't quote me on that.

 

http://legal-diction...om/manslaughter

 

The recent Peanut Corporation of America criminal prosecutions were based on the FDA regulations, and are for fraud and conspiracy.  The federal government probably felt those were the charges that they had jurisdiction over, and easiest to prove.  The state of Georgia threatened to prosecute for manslaughter, but the tricky intent requirements would have made this an interesting trial, so there could be a failure to convict.  It was better to go the safe route.  The executives could still be prosecuted under Georgia law, since the federal laws are considered different crimes.  So Double Jeopardy does not apply here at all.

 

Review of the entire PCA issue, including the criminal prosecutions.

 

http://en.wikipedia....tion_of_America

 

You can see how there will be a need for attorneys who are knowledgeable about food safety regulations and issues, including how unsafe food can cause harm. 

 

And don't forget the civil side of food safety, those lawsuits that can be raised because of people who died from food allergies or infections.  We are only seeing the start of that body of litigation.  And wrongful death lawsuits can be for big bucks, because you have to compensate the family of the victim's earning potential for years into the future.

 

Some years ago, environmental issues were at about the same stage; there were few attorneys who knew about it and it was only the start of the public awareness of the harm that could be caused.  If you are interested, check out the movie A Civil Action, or even read the book.  Now environmental law is well established and attorneys are available who know about it.  Food safety may need to get to that stage.

 

Martha


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"Life's like a movie, write your own ending."  The Muppets


#4 Simon

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Posted 31 March 2015 - 06:29 AM

Hi Martha, is wilful negligence intent? Ignorance is no defence and I would say yes it is.  If it can be proven.  Often in these cases as you say it is difficult to get enough mud to stick where it should and I agree.  Certainly food fraud has intent. In extreme cases I think it is justified, however difficult.  I’m sure it would raise the stakes.

 

I will read up on the Peanut Corporation of America case as I don’t know a lot about it…thanks.

 

Compensation to victims, litigation, increased insurance premiums, loss of goodwill, market share, stock value are all scary to business owners, but nothing like the threat of loss of freedom.

 

It’s an interesting subject that no doubt will develop over the coming years.


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#5 MWidra

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Posted 31 March 2015 - 10:43 AM

Hi Martha, is wilful negligence intent? Ignorance is no defence and I would say yes it is.  If it can be proven.  Often in these cases as you say it is difficult to get enough mud to stick where it should and I agree.  Certainly food fraud has intent. In extreme cases I think it is justified, however difficult.  I’m sure it would raise the stakes.

 

I will read up on the Peanut Corporation of America case as I don’t know a lot about it…thanks.

 

Compensation to victims, litigation, increased insurance premiums, loss of goodwill, market share, stock value are all scary to business owners, but nothing like the threat of loss of freedom.

 

It’s an interesting subject that no doubt will develop over the coming years.

Willful negligence could rise to the level of intent, because you intentionally failed to perform your duty of care, like not feeding your child.  Negligence is a failure ot perform those duties of care that are universally accepted, like driving prudently, or feeding a child.  You can fail to perform because you were careless, like driving too fast without thinking about it, or intentionally, like not feeding your child.

 

Criminal intent is a very complicated topic, and there are doctrines which are sometimes part of statutes for general/basic intent and specific intent.  And there are some crimes that do not require intent, like constructive possession of illegal substances. If it was within your grasp, even if you were not fully aware of it, you are guilty of possession.

 

For a summary of criminal intent, this is a good source.  Just remember that entire sections of law text books and courses are devoted to intent.

 

http://thelawdiction...iminal-intent/ 

 

The law is complicated in its simplicity, which is why we have attorneys to protect our rights.  It has to be broadly stated or else the books of statutes would fill buildings instead of shelves, yet it has to cover all possible circumstances.  I keep saying that everyone in any country should be required to take an introduction to law course at some point, so they know how it works.  I've heard so many people say totally false things in earnestness over the years here, and I'm sure that it happens everywhere.  I carry a pocket Constitution in my purse, because it is important to know what US law is based on.  For countries that do not have a written constitution, it must be more complicated sorting it all out.

 

The Peanut Corporation of America (PCA) case is the reason that AIB has gotten more strict.  They gave PCA a glowing audit.  Which is why audits don't always tell the full tale of how good your food safety program really is, only how well you cleaned up for the auditor.  And maybe the reason for the trend towards unscheduled audits these days.  Nine people died from Salmonella from the PCA ingredients.  PCA went bankrupt before lawsuits could be filed, since it took a lot of time to trace back the infection.  The only way that justice could be served at all is for criminal charges to be filed and prosecuted.  It will not bring back the victims and PCA will never harm anyone else, so the hope is that it will deter others.  But I'm not sure how much of a deterrent criminal charges are, because we still see people complaining that the management of their plant say to just ship the food and not care about the food safety problems.  It will take a lot more prosecutions to change that mindset in some people in the food industry.

 

As you have probably seen, I'm fascinated by the law.  It has a logic and beauty, yet can be human and humane at the same time.  We tend to villify attorneys, but if you want to more deeply understand them, ask a good attorney why they were drawn to the law.  Their eyes tend to light up and they tend to talk about the desire to help others.

 

I'm a lot more cyincal about doctors, and I've known a lot of them too.

 

Martha


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"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

"Life's like a movie, write your own ending."  The Muppets


#6 nlbrenn

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Posted 01 April 2015 - 12:34 PM

The DeCosters egg trial is the trial that fascinates me.  How can a company have so many different types of violations (food safety and otherwise) and pay huge fines (millions of $ over to course of 35 years) and still be in business long enough to have another food safety issue in 2010 and a fine of $7 million and now for the first time have the possibility of jail time? 


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