With the United States Department of Agriculture prepared to implement President Trump’s executive order to keep meat and poultry processing facilities open during the COVID-19 national emergency, it’s worth considering the legal ramifications of such an action. – IMM
Tyson Foods recently suspended production at its Waterloo, Iowa, pork processing plant due to a growing coronavirus outbreak among employees. The plant was Tyson’s largest, employing some 2,800 workers and processing 19,500 pigs a day. At least 180 confirmed infections originated from the plant, about half of all cases in the county.
It wasn’t the first meat processing plant to close. In the U.S., at least 13 have halted at some point in recent weeks, affecting over 25% of the nation’s pork processing capacity. As a result, pig farmers have begun euthanizing hundreds and potentially tens of thousands of animals that can’t be processed – raising fears of a meat shortage on grocery shelves.
President Donald Trump aims to reopen the meat processing plants – and keep them open – by declaring such businesses “critical infrastructure” under the Defense Production Act.
When deciding whether to close or reopen a plant, managers at essential companies have been weighing a variety of factors, from worker safety and profits to keeping afloat a US$230 billion segment of the U.S. economy that supplies food for hundreds of millions of Americans.
As a corporate and white-collar crime scholar, I believe there’s another variable they’re weighing: criminal liability.
Put simply, executives at food companies like Tyson face a heightened risk of criminal prosecution for the decisions they make.
This is due to a quirk in American law, known as the “responsible corporate officer doctrine,” that allows senior executives in certain industries to be held criminally responsible for wrongdoing at their companies – even if they’ve never set foot in a plant or factory.
In the case of the coronavirus pandemic, potential criminal liability stems from a meatpacking facility sending out a contaminated product and knowing there was an outbreak among employees. While the Centers for Disease Control and Prevention has not found evidence that COVID-19 has been transmitted through meat or poultry, public health officials have said that coronavirus strains can live at low and freezing temperatures and on food packaging. And so much about the risks of COVID-19 are uncertain and evolving that companies need to be on their toes.
In addition, there’s the danger that if plants stay in operation without enough workers, there’s a greater risk for other types of food contamination, like of E. coli or salmonella. And while the Food and Drug Administration has reduced the number of inspections during the outbreak, that doesn’t limit the criminal liability of executives if tainted food reaches a consumer.
This means food safety procedures are paramount to keeping the public safe. Executives that don’t take steps to ensure those procedures are in place – for example, by keeping processing lines going as usual while employee infections spike – are at risk of ignoring their legal duties and becoming a “responsible corporate officer.”
Normally, criminal law insists that a defendant must be aware that he’s doing something wrong to be held liable. But courts have decided that this element of intent can be ignored in limited situations where the public’s health and welfare are at stake – namely, in the making of drugs and in food production.
Although the responsible corporate officer doctrine is an anomaly in the criminal law, it has a lengthy history.
In 1943, the Supreme Court in United States v. Dotterweich found that the president and general manager of a pharmaceutical company was liable for the misbranding of the company’s drugs that were later distributed across state lines. In upholding his conviction under the Food, Drug and Cosmetic Act, the court stated that there need not be a showing that Joseph Dotterweich knew of the illegal activity.
The court reasoned that Congress had balanced the relative hardships that came from imposing “strict liability” on corporate executives who had a “responsible share” in the illegal conduct and those imposed on the innocent public “who are wholly helpless.” Dotterweich was found guilty by a jury and had to pay a small fine.
Thirty years later, in United States v. Park, the Supreme Court again considered the responsible corporate officer doctrine, this time specific to food distribution. John Park, president and CEO of a national food chain, was charged with violating the Food, Drug and Cosmetic Act for allowing food to be shipped from company warehouses infested with rats.
Although the contamination occurred in locations Park did not personally oversee, the court found him responsible. The court held that the food act imposes not only a positive duty to seek out and remedy violations but also a duty to “implement measures that will insure that violations will not occur.” While this standard is demanding, the court conceded, the public has a right to expect executives to assume such a standard when taking positions of authority that affect the health and well-being of the public. He was required to pay a small fine.
For example, in 2016, the Eighth Circuit not only upheld the conviction of two executive owners of a large Iowa egg production company for not preventing a salmonella outbreak, but also their three-month jail sentences. Relying on the previous Supreme Court rulings, the court in United States v. DeCoster brushed aside arguments that jailing the the owner and his son for a strict liability crime violated the Constitution.
The punishment was proportionate and reasonable, the court found, for those overseeing “egregious” safety and sanitation procedures that allowed salmonella-contaminated eggs to enter the market and sicken consumers.
The president said his executive order will protect the plants from liability, but I haven’t seen anything in the Defense Production Act that would create a “safe harbor” for food producers. And the Supreme Court has ruled that being forced by the government to produce something doesn’t entirely remove its liability over consumer safety.
While it would be easy for those executives with responsibility over our nation’s food supply to defer to others, such as governors or the president, that thinking ignores their own duties – legal and ethical – as well as their own criminal risk.
The law is clear that even if an executive is not involved in the day-to-day operations of production, he or she could be held criminally responsible for the distribution of contaminated food.
That’s one more risk to weigh in the decision to keep the plant doors open. Let’s see if it tips the balance.
This article has been updated to reflect new information.
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