The DeCosters employed an environmental testing program for Salmonella. In 2006, the number of environmental positives began to gradually increase year over year. In 2009, seeking to reverse the increase in Salmonella positives, the DeCosters retained Dr. Charles Hofacre, a poultry disease specialist, and Dr. Maxcy Nolan, a rodent control expert. The DeCosters purportedly adopted all the consultants’ recommendations. They also provided a second round of Salmonella vaccinations to their chickens.
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In August 2010, the company was responsible for an outbreak of Salmonella enteritidis. During the subsequent investigation, FDA identified a litany of sanitation problems at the chicken farms, eventually compelling the company to euthanize its animals, clean and repair its facilities, and disinfect its barns.
Following a criminal investigation, Quality Egg and the DeCosters were charged criminally. Quality Egg was charged with and pleaded guilty to: 1) felony bribery of a USDA inspector, 2) felony violation of the FD&C Act, and 3) misdemeanor violation of the FD&C Act. The DeCosters were not implicated in the felonies but were charged with misdemeanor violations of the FD&C Act under the RCOD. After pleading guilty, Jack and his son were each fined $100,000 and each was sentenced to three months in prison.
The DeCosters appealed, arguing that, because they did not know the eggs were adulterated, imprisonment was unconstitutional. The Eighth Circuit disagreed, succinctly and eloquently summarizing the law as follows:
The FD&C Act punishes neglect where the law requires care, or inaction where it imposes a duty because according to Congress, the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.
The Supreme Court denied the DeCosters petition for review, thus closing any possibility of the RCOD being declared unconstitutional.
Where Do We Go from Here?
Over the last 20 years, food science, microbiology, forensic epidemiology, and information technology have vastly improved our understanding of food safety. As foodborne illness surveillance and traceability continue to improve, the food industry will likely face ever-increasing regulatory scrutiny. With it, there may come a corresponding increase in the number of RCOD prosecutions.
Unfortunately, no amount of effort or diligence can guarantee perfection every time; some things are simply beyond control. When it comes to the RCOD, the best defense is a good offense, as the adage goes. While knowledge and intent may be immaterial in terms of the law, they are very material to the investigators responsible for making charging decisions. In turn, the companies and executives who exercise the highest standard of care are not only less likely to violate the FD&C Act, they are also less likely to be targeted for prosecution.
Stevens, a food industry attorney, is a founding member of Food Industry Counsel, LLC. Reach him at firstname.lastname@example.org. Chappelle is also a food industry lawyer and consultant at the same organization. Reach him at email@example.com.