A recent 76-count indictment announced by the United States Department of Justice demonstrates that executives who willfully ignore food safety standards risk criminal prosecution in addition to the potential criminal and civil penalties facing their companies. The indictment, against former officials and employees of Peanut Corporation of America (PCA), stemmed from a 2009 salmonella outbreak traced to a PCA roasting plant.  At least nine people are alleged to have died due to consumption of the tainted peanut butter, which was later recalled.

The indictment alleges that the officials, as well as another employee who previously pleaded guilty to similar charges, conspired for six years to deliver adulterated and misbranded food. In particular, the indicted individuals allegedly failed to inform PCA customers after laboratory tests revealed the presence of salmonella and fabricated certificates of analysis (COAs)—documents that summarize lab results including whether tested food is contaminated.

Although both civil and criminal statutes and penalties against the company and individuals are available, the government has rarely charged individuals criminally in cases involving food safety violations. The fact that, according to the indictment, company officials knowingly focused on profit over safety likely contributed to the government’s aggressive move in this case.  For example, in one email detailed in the indictment, PCA’s president ordered that products for which the salmonella testing results were not yet available be shipped to the customer, writing “s**t, just ship it.  I cannot afford to loose (sic) another customer.”  Additional factors that likely led to criminal prosecution of PCA officials include the length of time over which the officials’ conduct occurred and the fact that it included allegations of lying to and obstructing the investigation of FDA investigators.

The government continues to investigate other large scale outbreaks, including a 2010 salmonella outbreak in eggs and a 2011 listeria outbreak in cantaloupe that was linked to more than 30 deaths. Food safety issues have also led to increased authority for the FDA in the Food Safety Modernization Act passed in 2011, including the ability to issue mandatory recalls and revoke the registration of food facilities.

To read a fuller McGuireWoods discussion of the PCA prosecution, please click here.