This pattern of increasing illness detections is not going to be limited to Listeria. Whole genome sequencing was implemented for Listeria in 2013, but the CDC is expanding its use in other foodborne pathogens.
For most consumers, this might mean it seems like there’s more outbreaks happening and that the food system seems less safe. However, it’s actually a good thing for consumers. WGS, and increased surveillance and traceback, is going to make it easier to conclusively connect a person’s illness to a food product and thus meet the legal standard for holding the company liable. So consumers who are injured are more likely to be compensated, while bad actors are more likely to be detected and held accountable.
This poses a major risk for any company that doesn’t make food safety a top operational priority. Another speaker at the MSU Food Safety Executive Training, Dave Theno, called this risk the one metric you bet your company on every day.
However, WGS won’t just catch bad actors that wantonly disregard public health. The Food, Drug, and Cosmetic Act prohibits the introduction into commerce of any food that is adulterated or misbranded, 21 U.S.C. § 331.
Usually, to be convicted of a crime requires some kind of criminal state of mind, such as intentionally or knowingly doing the act that is prohibited.
Not so for the FDCA.
21 U.S.C. § 331(1) states “Any person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000, or both.”
This penalty provision requires no knowledge of the fact that you are introducing adulterated food into commerce. Simply by introducing adulterated food you can be convicted of a misdemeanor.
The Jensen Brothers, who were responsible for the 2011 listeriosis outbreak linked to cantaloupe, were convicted of misdemeanors, though they had absolutely no intent or even knowledge
that they were releasing contaminated food into the market.
If you are convicted and introduce an adulterated or misbranded product, or do it “with the intent to defraud or mislead,” you can be convicted of a felony. 21 U.S.C. § 331(2).
Did you know Dole
and Blue Bell
are under criminal investigations for their recent Listeria outbreaks? These investigations have to do with what the companies knew about the conditions at their plants and what they did (or chose not do) about it.
Furthermore, under the Park Doctrine, any corporate officer who had “authority with respect to the conditions that formed the basis of the alleged violations” can be held liable, United States v. Park, 421 U.S. 658, 674 (1975).
Notably, one of the ways a food can become adulterated is if it was manufactured or held under unsanitary conditions. 21 U.S.C. § 342(a)(4). So the food doesn’t have to actually be contaminated, just produced in a facility where it could become contaminated. For instance, if there was, say, Listeria hanging out in a floor drain or some floor mats that might occasionally contaminate a batch of ice cream or salad.
So under Park, a corporate officer can be held liable if he had authority to deal with a situation, such as food manufactured or held under unsanitary conditions. 421 U.S. at 674.