New DOJ unit will prosecute food safety scofflaws

Food safety scofflaws are now going to fall under the jurisdiction of the Enforcement & Affirmative Litigation Branch of the U.S. Department of Justice.  The new unit is housed in the Department of Justice’s Civil Division.

Before this reorganization, the most serious civil and criminal cases involving food safety were brought by local U.S. Attorneys with assistance from the Consumer Affairs Division at “Main” Justice.

The new division, with two sections,  is dedicated to safeguarding public health and safety through proactive enforcement and high-impact affirmative litigation. 

“By consolidating the Civil Division’s affirmative litigation work into a highly specialized branch, the Department will strengthen its ability to hold powerful actors accountable, protect public health and safety, and enforce critical national policies,” said Assistant Attorney General Brett A. Shumate of the Justice Department’s Civil Division. “This restructuring reflects the Department’s commitment to aggressively protecting consumers and advancing the interests of the United States.”

The Enforcement Section will draw on the department’s extensive experience bringing landmark cases under statutes such as the Controlled Substances Act, Federal Food, Drug, and Cosmetic Act (FDCA), Consumer Product Safety Act, Federal Trade Commission Act, Children’s Online Privacy Protection Act, and the Restore Online Shoppers’ Confidence Act, to protect consumers — whether it be from unfair and deceptive trade practices of the largest technology companies in the world, defective consumer goods imported from other countries, or false and misleading claims about drugs and dietary supplements manufactured by pharmaceutical companies.

 The Affirmative Litigation Section will represent the United States by filing lawsuits against states, municipalities, and private entities that interfere with or obstruct federal policies, ensuring nationwide compliance with the U.S. Constitution and federal law.

The new Enforcement & Affirmative Litigation Branch will strengthen the Civil Division’s ability to advance DOJ’s enforcement priorities, including protecting women and children.

While not explicitly mentioned in the DOJ announcement, the new division is likely to take on litigation involving the introduction of adulterated food into interstate commerce with the intent to defraud or mislead, as well as interstate shipments of food that is adulterated or mislabeled with the intent to defraud or mislead.

These are among the most serious charges brought when food safety issues escalate into a criminal matter.

Adulterating or misbranding a food, drugs, or medical devices, and putting an adulterated or misbranded food, drug, or device into interstate commerce, can bring felony charges and jury convictions.

Any person who commits a prohibited act violates the FDCA. A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable by years in jail and millions in fines, or both. 

The key here is whether it is an intentional act. A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Instead, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation, or prevented the tainted product from entering interstate commerce. 

Again, unlike a felony, a misdemeanor charge is a crime with no intent. Convictions under the misdemeanor provisions are punishable by not more than one year, or a fine of not more than $250,000, or both.

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