In recent years, the public has increasingly become aware of foodborne illnesses resulting from manufacturers’ and chain restaurants’ poor food safety practices. Most recently, in fall 2015, Chipotle Mexican Grill Inc. had to temporarily close numerous of its restaurants, coast to coast, as a result of Salmonella, norovirus, and E. coli outbreaks linked to its restaurants. The outbreaks sickened over 500 people. In addition to consumer civil lawsuits, the U.S. Department of Justice has stepped in to investigate. If DOJ decides to move forward with the case, prosecution may lead to criminal liability, both for the company, as a whole, and for the executives, individually. Although DOJ has had the legal power to prosecute similar cases to this extent in the past, recent policy changes, including the guidance from the 2015 Yates Memo, have prompted stricter rules and more forceful investigations.
Professor Timothy Lytton commented on the issue in Corporate Counsel’s March 1 article “Food Scare: Chipotle’s Woes Highlight Supply Chain Risks for Execs.” Lytton states: “what happens in the evolution of public policies is that there are certain focusing events, things that for some reason or another capture people’s attention and create pressure for policy change.” The two events he identifies as drivers for the policy change is the 2008 Virginia-based Peanut Corporation of America’s salmonella outbreak, where 714 people became ill and nine people died, and the 2011 Jensen Farm’s listeria outbreak, where 147 people became ill and thirty-three people died. He further notes, however, that although DOJ has great legal leeway to bring individual prosecutions, their resources are limited. As such, DOJ tends to focus its prosecution “in cases where there are repeated violation and apparent refusal to clean up the process…or where they consider there to be gross negligence.”
Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law and a member of the Center for Law, Health & Society. His research examines health and safety regulation with a focus on food policy. He is the author of Kosher: Private Regulation in the Age of Industrial Food (Harvard U. Press 2013) and is currently writing a book on the U.S. food safety system.