Timothy Delong, former president of Atlantis Foods, Inc., has plead guilty to charges of engaging in a scheme to defraud through the sale of adulterated food (food contaminated with Listeria monocytogenes), and a scheme to introduce misbranded food into interstate commerce in violation of Title 18, U.S.C. § 1341, and 21 U.S.C. §§ 331(a), 333(a)(2), and 343. R. Alexander Acosta, United States Attorney for the Southern District of Florida, David W. Bourne, Special Agent in Charge, Food and Drug Administration, Office of Criminal Investigations, and Lee Huttenbach, Special Agent in Charge, U.S. Department of Agriculture, Southeast Region, Office of Inspector General, announce that Mr. Delong was sentenced yesterday to fifteen (15) months in prison.

U. S. District Court Judge Daniel T. K. Hurley imposed the 15-month sentence and also ordered Delong to pay a fine of $5,000 and to pay restitution in the amount of $200,000 to the University of Florida’s Institute of Food and Agricultural Sciences to be used to support its programs in the area of food safety. The sentence will be followed by three years of supervised release.

Count 1 of the Information charged Delong with engaging in a scheme to defraud the customers of Atlantis Foods, Inc., where Delong served as president, through the sale of adulterated prepared foods. Delong, through Atlantis, sold chicken salad, Maine lobster dip, salmon cream cheese, salmon spread, chicken salad with almonds and cranberries, and crab stuffing which contained the harmful bacterium Listeria monocytogenes. Delong was president of Atlantis Foods, which on six occasions in 2003, allegedly produced and distributed food products containing Listeria monocytogenes. Delong failed to notify his customers after learning of the contamination and did not initiate a recall of the products.

Count 2 of the Information charged Delong with the introduction into interstate commerce of misbranded food, namely "Smoked Rainbow Trout Spread," between January 2002 and December 2003. According to court records, the spread, which listed trout as the first ingredient, was false and misleading in that the product in fact did not contain trout, but instead was made with tuna.

 

Labels: food regulation, Listeria, listeria attorney, sentence

The recent Salmonella outbreak linked to Peanut Corporation of America peanut butter and peanut paste resulted in recalls of thousands of products (3,863 as of March 27, 2009).

In the following opinion piece, food safety attorney Fred Pritzker discusses the responsibility of retailers and others to get recalled products off of the shelves. According to Mr. Pritzker, "To promote food safety, everyone up and down the stream of commerce has to act and bear responsibility and should be held accountable for failing to do so."

Upstream, Downstream: Everyone Has to be Responsible

by Fred Pritzker

The whole point of a food recall is to prevent additional foodborne illness after producers and their adulterated products are identified. That’s why it’s so important for food companies, food distributors, food retailers and federal, state and local authorities to promptly and effectively remove from the marketplace any food known or reasonably certain to cause illness or death.

That’s also why there should be a special place in hell for those companies that knew or should have known a food product was dangerous but continued to sell it anyway.

The ongoing Salmonella outbreak involving Peanut Corporation of America (PCA) is a case in point. It appears from the company’s emails that its officers and employees knowingly shipped adulterated product. If so, the company’s liquidation and the criminal investigation of its principals are both necessary and fair.

But what about the downstream retailers of food products containing adulterated PCA ingredients? Aren’t they just as culpable if they fail to remove contaminated product from their shelves after they knew or should have known of the recall?

This is not an idle musing. Long after the PCA recall was announced and long after the list of adulterated products was known and accessible on a variety of web sites, retailers big and tiny continued to sell these poisonous snacks. I know because I looked.

Many of the recalled products were snack foods with long shelf lives and wide distribution. Many of the retailers who sell them are small outlets with small product stocks and unsophisticated (if any) recall procedures. For many such retailers, there is little economic justification for removing dangerous products and even less risk of public approbation for failing to do so – little consolation for the victims who continue to get sick long after the products should have been removed.

Perversely, the legal system in many states promotes such behavior. So called “pass through statutes” are intended to insulate downstream retailers from lawsuit liability if the upstream producer or manufacturer of the dangerous product is identifiable and solvent. In such cases, the retailer is automatically dismissed from litigation and bears no financial responsibility (dismissals can be avoided if the downstream retailer modified the product or otherwise actively participated in making the product defective).

So what should be done? From the standpoint of efficacy and efficiency, better product traceback and notification systems have to be designed and implemented. However, I have no illusions that any such improvements are really going to rid long lived snacks from the shelves of retailers disinclined to care all that much. What will incentivize such retailers is the threat of criminal sanctions and financial responsibility.

First, create a tight and focused criminal law that makes it a crime to sell a food product that a retailer knows or should know has been recalled. We do it for sales of liquor and cigarettes to minors; there is no reason not to do it for dangerous food products. If criminalizing the behavior is too extreme, create economic penalties by allowing consumers to prove such illegal sales and awarding them attorney fees if they’re successful. Again, there is precedent for such measures in consumer protection statutes on the books in virtually every state.

To promote food safety, everyone up and down the stream of commerce has to act and bear responsibility and should be held accountable for failing to do so.

Labels: food safety, food safety lawyer, press release, Salmonella