On April 29, 2016, Dole Foods Company announced that the Department of Justice (DOJ) had launched an investigation concerning listeria outbreaks at certain Dole plants. The investigation comes on the heels of a number of high profile DOJ probes into outbreaks of food-related illnesses, most recently Blue Bell Creameries, and continues the DOJ’s recent trend towards aggressive pursuit of food safety violations and criminal charges against corporate executives.
The federal Food, Drug, and Cosmetic Act (FDCA) creates a strict liability criminal offense arising from the introduction of adulterated food into interstate commerce. The DOJ may elect to pursue misdemeanor or felony charges based on the nature and seriousness of the violation and the scope of the outbreak. If the outbreak is a first-time offense or is the result of an unintentional violation, then the DOJ is more likely to pursue misdemeanor charges. If, on the other hand, the company responsible for the outbreak has repeatedly violated the FDCA or has introduced the adulterated food intentionally or knowingly, the DOJ has not hesitated to bring felony charges. Importantly, both companies and individual executives may face liability for outbreaks, and company executives may be held vicariously liable and face criminal charges even if they were unaware of the contamination.