After the Peanut Corp. of America had recently encountered allegations of the presence of Salmonella in products it shipped from its Georgia facility, we decided to investigate what type of federal or Georgia criminal statutes might be applicable to this case. (If you’re interested in the details, there’s a legal memo after the break that addresses food safety and prosecution under federal and Georgian law.)
According to the Atlanta Journal constitution, the GBI was first asked to review the state’s criminal charges. However, the GBI later decided to back down, leaving the criminal investigation to the FBI and other federal law enforcement agencies. But according to an article in the Macon, Georgia Telegraph, federal agencies rarely file criminal charges in food safety investigations.
Of course, the magnitude of this case may prompt federal agencies to make an exception and set an example.
federal law
Federal Law on Food, Drugs and Cosmetics
The criminal prosecution of a person or company is an option contained in the EZG. Pursuant to 21 USCA § 333(a) of the FDCA, any person found to have violated the law may be punishable by up to one year in prison or a $1,000 fine. Repeat offenders and individuals with intent face three years in prison or a fine of up to $10,000. The FDCA’s strict criminal liability standard (ie, no intent or knowledge is required) is a contentious provision. Even so, a conviction under the FDCA is extremely rare, and in most cases, business leaders have little to fear. Indeed, unless their behavior is particularly egregious and the adverse consequences severe, food manufacturers would likely not face sanctions. One such case occurred in 1987 when it was found that a carcinogenic pesticide had contaminated cattle feed, causing an increased risk of cancer in babies breastfed by mothers who consumed the tainted milk. Dairy products in eight states have been affected and 100 farms have been quarantined. Ultimately, three feed company officials responsible for the contamination were sentenced to between one and three years in prison and fined $7,500 each. However, the incidence of prosecution of individuals along the food production chain appears to be very low (53 Food & Drug Law Journal 681, Death by Apple Juice: The Problem of Foodborne Illness, the Regulatory Response, and Further Suggestions for Reform).
In order to obtain a verdict convicting adulterated food under the Federal Food, Drug and Cosmetic Act, the government must prove that the article is counterfeit within the meaning of the law. However, to prove a violation of the section of the law that defines adulterated food, the government need only show that the food was stored in unsanitary conditions that create a reasonable possibility of its contamination; evidence of actual contamination is not required, although such evidence is evidence that the food was held in unsanitary conditions.
The accused person or company bears the burden of proof for positive defenses. If a business executive, as a defense against prosecution for violation of a food safety law by his or her business, alleges that he or she was powerless to prevent a violation of the law, he or she has a duty to come forward with evidence in support of the allegation defense made. Ultimately, however, it rests with the prosecution to prove beyond a reasonable doubt the accused’s guilt, including his power to prevent or correct the prohibited condition. (35A Am. Jur. 2d food § 72).
It should also be noted that lack of human justification is not a defense to a violation of the FDCA, as the law requires strict liability. U.S. v. Park, 421 U.S. 658 (1975).
Georgian law
Certain acts are prohibited under Georgia food law. Among them are:
(1) The manufacture, sale or supply, holding, storage or offering for sale of food that is adulterated or mislabeled;
(2) The adulteration or mislabeling of food;
OCGA § 26-2-22(2)
Adulterated foods can come in many forms and are defined as follows, among others:
(4) it was manufactured, prepared, packaged or stored in unsanitary conditions which may have contaminated it with dirt or made it sick, unhealthy or harmful;
OCGA § 26-2-26(4)
violations and penalties
A violation of this section of the law can be punished as an administrative offense:
Any person who violates Section 26-2-22 of the Code is guilty of an offence. . .
OCGA § 26-2-24
Penalties generally cannot exceed $1,000. This section of the Code does not specifically state whether the fine is a criminal or civil fine.
(b) In any event, subject to this section of the Code involving a violation or attempted violation of the Georgia Food Act, Section 2 of Chapter 2 of Title 26, the maximum penalty shall be the greater of $1,000.00 or the not exceed the amount of any winnings realized or intended to be realized from such violation, but in no event shall such penalty exceed $20,000.00; and in any case involving a violation or attempted violation of the Georgia Food Act, the written consent of the person against whom the penalty is sought is not required.
OCGA § 2-2-10(b)
The Commissioner can also apply for an injunction:
In addition to the remedies provided in this Article, the Commissioner shall have the authority to seek an injunction from the high court of the competent county. This court shall have jurisdiction, after hearing and on established grounds, to issue an injunction or injunction restraining a person from violating Section 26-2-22 of the Code, notwithstanding the existence of an adequate remedy.
OCGA § 26-2-23
In addition, if a representative of the Commissioner believes that an item is counterfeit, the item may be flagged as being held or embargoed. If anyone attempts to dispose of such an item by selling it for consumption, they may be charged with a felony as set forth in the law below.
(3) When the removal or disposal of an apprehended or embargoed item presents a significant hazard or danger to human health, any person violating paragraph (8) of Code Section 26-2-22 by submitting such removes or disposes of an item that has been apprehended or embargoed and the importation or attempted importation of that item into commerce for human consumption or processing for human consumption in violation of Section 26-2-38 of the Code is a felony guilty and, if convicted, shall be punished by imprisonment for less than one and not more than two years.
OCGA § 26-2-24
Certain food categories
The code then breaks down foods into categories (i.e. meat, milk, eggs, grains, fish). Each category lists how to handle food, and each section lists penalties for violating those standards.
Meat:
This section carries the harshest penalties and some violations are felonies. Some offenses carry three to ten years in prison and a fine of $10,000 to $50,000. OCGA § 26-2-88, 161, 186, 215.
Milk:
These violations are administrative offences. OCGA § 26-2-250.
eggs:
administrative offences. OCGA § 26-2-274.
grains:
$100 fine. 30 days in prison. OCGA § 26-2-297.
Fish
administrative offences. 30 days to six months. $50-$500 penalty. OCGA § 26-2-320.
Potential criminal charges for spoiled food
Manslaughter by negligence: § 16-5-3
(a) A person commits the offense of manslaughter by negligence in commission of a wrongful act when he causes the death of another human being without intending to do so by committing a wrongful act which is not a criminal offence. A person who commits the offense of negligent homicide in the commission of an unlawful act shall be sentenced to imprisonment for not less than one year and not more than ten years after conviction.
(b) A person commits the crime of manslaughter in the commission of a lawful act unlawfully when he causes the death of another human being without intending to expect it by the commission of a lawful act unlawfully, causing death or serious bodily harm to cause. Whoever commits the offense of negligent homicide in an unlawful manner while committing a lawful act is punished as a misdemeanor after his conviction.
A charge of involuntary manslaughter is appropriate only if the underlying act is not a crime. Riley v. State, 250 Ga. App. 427 (2001). Based on Georgia food law, the peanut company has only committed one misdemeanor that would make this charge reasonable (so long as the food was not withheld from sale or embargoed by the commissioner, which is a felony). OCGA § 26-2-24.
Furthermore, the intent required for negligent homicide is a criminal negligence based on reckless behavior on the part of the accused. Easley v. State, 262 Ga. App. 144 (2003). (However, intent is required for the underlying wrongful act. Scraders v. State, 263 Ga. App. 754 (2003)).
Reckless Behavior: 16-5-60
(b) A person who causes physical harm or threatens the physical safety of another person by knowingly disregarding a significant and unjustifiable risk that his act or omission will cause harm to the other person or endanger his safety, and the disregard a gross departure from the standard of care a reasonable person would apply in the situation of being guilty of an offence.
This law has managed to survive issues of vagueness. Such offenses that are prosecuted are driving on the wrong side of the road, firing a shot near a car, shooting a dog near a public road and then pointing a gun at a person, rough handling a small child and the endangerment of a third person meanwhile a serious physical injury.
However, it should be noted that “if death occurs as a result of reckless conduct, a defendant is guilty of negligent manslaughter. Thus, if there is no evidence of the suspect’s alleged reckless conduct other than that directly related to the victim’s death, a charge of reckless conduct must be related to involuntary manslaughter. A charge of reckless conduct as a minor offense of malicious murder would not be admissible.” GACRIMOFDF R12.
