After the recent allegations hit the Peanut Corp.of America about the presence of salmonella in products it shipped from its Georgia plant, we decided to explore what sort of federal or Georgia criminal laws might apply to this case. (If you are interested in the details, a legal memo addressing food safety and criminal prosecutions under federal and Georgia law can be found after the break.)
According to the Atlanta Journal Constitution, the GBI was initially asked to look into state criminal charges. Later, however, the GBI decided to back off and leave the criminal investigation to the FBI and other federal law enforcement agencies. But, according to an article in the Macon, Georgia Telegraph, the feds rarely bring criminal charges in food safety investigations.
Of course, the magnitude of this case may cause the feds to make an exception, and an example.
Federal Food Drug and Cosmetic Act
Criminal prosecution of a person or company is an option contained in the FDCA. Pursuant to 21 USCA § 333(a) of the FDCA, any person found to have violated the Act may be punished by up to one year in prison or a $1,000 fine. Repeat offenders and those with intent may face three years in prison or fined up to $10,000. The FDCA’s strict standard for criminal liability (i.e., malicious intent or even knowledge is unnecessary) is a controversial provision. Even so, conviction under the FDCA is extremely rare, and in most cases company executives have little to fear. In fact, food producers probably would not face sanctions unless their conduct is particularly egregious and the adverse outcome is serious. One such case occurred in 1987, when a carcinogenic pesticide was found to have contaminated cattle feed, causing an increased risk of cancer among breast-fed babies of mothers who consumed the tainted milk. Milk products in eight states were implicated, and 100 farms were quarantined. Ultimately, three officials of the feed company responsible for the contamination were convicted, with jail sentences from one to three years and fines of $7500 each. Still, 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).
To secure a verdict for the condemnation of adulterated food under the Federal Food, Drug, and Cosmetic Act the government has the burden of proving the article is adulterated within the meaning of the statute. However, to prove a violation of the section of the Act defining adulterated food, the government need only prove the food was held under unsanitary conditions which created a reasonable possibility of its contamination; proof of actual contamination is not required, although such proof is evidence that the food was held under unsanitary conditions.
The accused individual or company has the burden of proving affirmative defenses. If a corporate officer asserts, as a defense to a criminal prosecution for the violation by his or her company of a food safety law, that he or she was powerless to prevent a violation of the Act, he or she has the burden of coming forward with evidence in support of the asserted defense. However, the burden ultimately remains on the prosecution to prove the defendant’s guilt beyond a reasonable doubt, including his or her power to prevent or correct the prohibited condition. (35A Am. Jur. 2d Food § 72).
It should also be noted that the lack of mens rea is not a defense to a violation of the FDCA, since the statute imposes strict liability. US v. Park, 421 US 658 (1975).
Under the Georgia Food Act, certain acts are prohibited. Among these are:
(1) The manufacture, sale or delivery, holding, storage, or offering for sale of any food that is adulterated or misbranded;
(2) The adulteration or misbranding of any food;
OCGA § 26-2-22(2)
Adulterated food may come in many forms and one way it is defined is:
(4) It has been produced, prepared, packed, or held under unsanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome, or injurious to health;
OCGA § 26-2-26(4)
Violations and Penalties
A violation of this section of the Act may be prosecuted as a misdemeanor:
Any person who violates Code Section 26-2-22 shall be guilty of a misdemeanor. . .
OCGA § 26-2-24
Penalties generally may not exceed $1000. This section of the Code doesn’t explicitly state whether this is a criminal fine or civil fine.
(b) In any case subject to this Code section which involves a violation or attempted violation of the “Georgia Food Act,” Article 2 of Chapter 2 of Title 26, the maximum penalty shall not exceed the greater of $1,000.00 or the amount of gain realized or sought to be realized through 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 to be imposed shall not be required.
OCGA § 2-2-10(b)
The Commissioner may also seek an injunction:
In addition to the remedies provided for in this article, the Commissioner is authorized to apply to the superior court of the appropriate county for an injunction. Such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating Code Section 26-2-22, notwithstanding the existence of an adequate remedy at law.
OCGA § 26-2-23
In addition, if an agent of the Commissioner deems that an article is adulterated, the article can be marked as being detained or embargoed. If someone attempts to dispose of such an article by selling it for consumption, they can be charged with a felony as the law states below.
(3) If the removal or disposal of a detained or embargoed article creates a significant eminent threat or danger to human health, any person who violates paragraph (8) of Code Section 26-2-22 by removing or disposing of such detained or embargoed article and introducing or attempting to introduce said article into commerce for the purpose of human consumption or processing for human consumption in violation of Code Section 26-2-38 shall be guilty of a felony and, upon conviction, shall be punished by imprisonment for not less than one nor more than two years.
OCGA § 26-2-24
Specific Categories of Food
The Code then breaks down foods by category (i.e. meat, milk, eggs, grains, fish). Each category lists how the food is to be handled, and each section lists penalties for violating those standards.
This section carries with it the most severe penalties and some violations are felonies. Some felony violations carry with them three to ten years in prison and a $10,000 to $50,000 fine. OCGA § 26-2-88, 161, 186, 215.
These violations are misdemeanors. OCGA § 26-2-250.
Misdemeanors. OCGA § 26-2-274.
$100 fine. 30 days in jail. OCGA § 26-2-297.
Misdemeanors. 30 days to six months. $50-$500 fine. OCGA § 26-2-320.
Possible Criminal Charges for Tainted Food
Involuntary Manslaughter: § 16-5-3
(a) A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.
(b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.
A charge of involuntary manslaughter is only appropriate when the underlying act is not a felony. Riley v. State, 250 Ga. App. 427 (2001). Based on the Georgia Food Act, the peanut company only committed a misdemeanor which would make this charge appropriate (so long as the food had not been detained or embargoed by the Commissioner prior to sale which is a felony). OCGA § 26-2-24.
Furthermore, the level of intent required for involuntary manslaughter is criminal negligence which is based on the defendant’s reckless conduct. Easley v. State, 262 Ga. App. 144 (2003). (However, intent is required for the underlying unlawful act. Scraders v. State, 263 Ga. App. 754 (2003)).
Reckless Conduct: 16-5-60
(b) A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.
This statute has managed to survive questions of vagueness. Such offenses that have been prosecuted are driving on the wrong side of the road, firing a shot near a car, shooting a dog near a public street and then pointing the gun at a person, roughly handling an infant, and endangering a third person during an aggravated assault.
However, it should be noted that, “If a death occurs as the result of reckless conduct, a defendant is guilty of involuntary manslaughter. Thus, where there is no evidence of the defendant’s allegedly reckless conduct other than that directly related to the death of the victim, a charge on reckless conduct must be in the context of involuntary manslaughter. A charge on reckless conduct as a lesser included offense of malice murder would not be authorized.” GACRIMOFDF R12.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.