We’re both necessary evils, he gets paid better: Food lawyers

Posted on August 30, 2016 by Douglas Powell

Ronald L. Doering, a past president of the Canadian Food Inspection Agency and counsel in the Ottawa offices of Gowling WLG (Ronald.Doering@gowlings.com) writes in his latest Food in Canada column:

Except for maybe the Income Tax Act, it’s hard to imagine any area of the law that is more intimately pervasive in the daily lives of Canadians than food law. It regulates the agriculture and food industry, the second largest sector of the Canadian economy. For reasons of health, trade and consumer protection, this large and rapidly growing field has over a dozen specific federal statutes and many more provincial ones that form the basis of thousands of pages of regulations.

The food regulations under the Food and Drug Act are over 400 pages long and the nine sets of regulations under the Canada Agricultural Products Act are even much longer.

And yet, surprisingly, in this country, food law has not been widely recognized as a distinct area of law as it has been in the United States and Europe. We still don’t have a modern comprehensive text in food law. We don’t have a regular reporting service. Our law societies don’t recognize it as a separate area of specialization. Our law schools don’t teach it. Even lawyers who work for food companies don’t think of themselves as food lawyers. But this could all be changing.

One reason for the change is the dramatic growth in the scope and profile of food law over the last 20 years. While Canada got its first food adulteration statute as far back as 1876 and the original Food and Drug Act in 1920, to my mind, the modern era of food law can be traced to the famous 1993 “Jack in the Box” case that graphically showed the world that a young woman’s life could be ruined just by eating a hamburger that had an invisible trace of a little known bacteria. Several other high-profile foodborne illness outbreaks in the U.S. soon followed.

Twenty years ago this winter, Canada led the world when it brought together 16 programs that had formerly been delivered by four departments to integrate the whole food chain — seeds, feeds, fertilizers, plant health, animal health, all food commodities including fish — by creating the Canadian Food Inspection Agency (CFIA), a true watershed in Canadian food law. In the years that followed Canada too experienced many major national foodborne illness outbreaks causing many deaths and a flurry of new laws and regulations.

With the growth of food law in the last 20 years came the concomitant explosion of media attention to food issues sensationalizing a whole range of controversial food stories on, for example, pesticide residues, genetically modified foods, the danger of imported food, and mad cow disease. What the poor public mostly got was contradictory nutrition advice and bad science reporting. We saw the explosive growth of the urban foodie movement with its enthusiasm for local, organic and natural, whatever that means. Food stories rode the rising wave of social media. In 1993 a young journalist turned professor started what was probably the world’s first blog on food safety; now Doug Powell’s barfblog has 75,000 direct subscribers in more than 70 countries. When I started this column over 14 years ago many readers told me that it was the first time that they had ever seen the words “food” and “law” together.

Which brings me to what may be another interesting step on the road to recognition for this burgeoning area of practice and study. The Schulich School of Law at Dalhousie University has partnered with a nascent group called the Food Lawyers of Canada to host The Future of Food Law and Policy in Canada, Nov. 3 to 4, 2016 in Halifax with the stated purpose of promoting greater understanding and recognition of food law as a distinct discipline (visit foodlaw.ca/halifax2016).

Some years ago a food industry executive said to me: “Because food is so highly regulated, I guess you damn food lawyers are a necessary evil.” I took this as a compliment. We’ve been called worse.

Important: Explaining Canadian food law and staying out of jail

Posted on October 30, 2015 by Douglas Powell

Ronald L. Doering, a past president of the Canadian Food Inspection Agency and currently counsel in the Ottawa offices of Gowling (Ronald.doering@gowlings.com) writes:

Food company owners and managers are increasingly at risk of being taken to criminal court to face huge fines and imprisonment, even if they didn’t mean to do anything wrong, didn’t know they were doing anything wrong, or didn’t know that an employee was committing a prohibited act.

Everyone knows it’s a crime to sell unsafe food or mislabelled product, but there are many hundreds of other crimes in our food laws. Moreover, most of these offences are strict liability offences, which means that the Crown must only establish the criminal act; there is no need to prove that the accused intended or allowed the prohibited act to occur, even if the occurrence was totally accidental.

In Canada there is a defence to strict liability offences, a defence that deserves to be better known. In the leading case of R. v. Sault Ste. Marie, the Supreme Court of Canada recognized that in the case of strict liability offences “the accused can avoid liability by proving that he took all reasonable care; the defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or commission innocent, or if he took all reasonable steps to avoid the particular event.” Both branches of the defence turn on the notoriously vague concept of reasonableness.

There are several reported cases in environmental law and occupational

health and safety law that help to define the scope of the defence, but there are very few that deal with food legislation. Since 1992 it is settled law that the defence is available to charges under our Food and Drugs Act (FDA) but there are only three relevant cases to provide practical guidance to the industry. In HMTQ v. Stars Trading Co. (2003 BCSC 833) the company was selling imported coconut juice from Thailand to supermarkets in Canada without listing on the label that it contained sulphites, a potential allergen.

The accused argued the due diligence defence by claiming that it had received assurances from the exporter that the juice was sulphite free. The Canadian Food Inspection Agency (CFIA) had previously warned the company that it should test the product and the company had a history of non-compliance with the FDA. After a good review of the law, the Court held that the accused had not taken all reasonable care and therefore could not rely on the due diligence defence.

In R. v. Can-na Foods-2 Ltd., Tran Quyen Luu, Jane Jay et al. (2003 ABQB 758) the accused meat manager Luu and the owner Jay were charged with selling horse meat as beef. The court held that all reasonable steps to determine the source of the meat had not been taken and therefore the due diligence defence was not available. Heavy fines were imposed on the company, the employee and the owner.

In R. v. Ray’s Seafood Market the CFIA charged the accused with seven counts under the Fish Inspection Act of importing fish into Canada without an import licence. Both the trial judge and the Supreme Court judge accepted Ray’s due diligence defence, but the Quebec Court of Appeal quashed the acquittal and ordered a new trial, concluding that Ray’s excuse was essentially ignorance of the law, something that is never a defence.

The most significant new development in our law is the passage (though not yet proclaimed) of the Safe Food for Canadians Act. Under section 39 (1) the accused is liable on indictment to a fine of not more than $5 million or to imprisonment for a term of not more than two years or to both, but the person is not to be found guilty “if they establish that they exercised due diligence to prevent the commission of the offence.” The message for owners and senior managers is clear: a strong food safety culture passionately driven from the top down was always necessary to avoid recalls and protect the brand name. Exceeding standards and taking all preventative measures may also be the best way to stay out of jail.

China’s top court demands heavy penalties for food safety violations

Posted on August 6, 2015 by Douglas Powell

China’s top court has demanded heavy penalties for companies and individuals who violate the country’s food safety laws, the official Xinhua news agency reported late on Wednesday.

The Supreme People’s Court said in a circular on Wednesday that companies selling food online should be held wholly liable for any safety issues affecting consumers and urged firms to compensate consumers more quickly.

The country’s main prosecutor also said that it had investigated 652 officials relating to misconduct over food safety protection, including for embezzlement and taking bribes, Xinhua reported. The probes took place since the start of 2014.

How Chinese will be able to sue over bad food

Posted on December 12, 2013 by Douglas Powell

I like the cash prizes part in the story below from the China Post, building on other initiatives, like Chapman’s #citizenfoodsafety effort. We all eat.

A panel discussion at the 2013 National Food Safety Meeting earlier in Dec. focused on how Chinese consumers could better be compensated if they are negatively affected by food products with mislabeled ingredients or tainted with illegal additives.

Chairing the panel, Professor Huang Li of National Chengchi University said that consumers have been put at a disadvantage when involved in food safety incidents. For instance, they are required to show invoices to claim compensation. “This means ‘no invoice, no compensation,’ in sharp contrast to big-name vendors, who are able to retrieve tens of millions of New Taiwan dollars in compensation if they suffer losses from selling falsified food products,” Huang said.

A representative of the Consumers’ Foundation at the panel discussion suggested that the government should impose large sum punitive fines on firms which violate the Food Sanitation Act so that consumers can enjoy more compensation.

Meanwhile, Tsai Hong-chih, chairman of the Changhua Medical Alliance for Public Affairs, said that a significant portion of proposed food safety funds should be used to encourage locals to report violations of the Food Sanitation Act, with cash prizes given to informants to be boosted to 30 to 50 percent of fines collected.

FSMA: Will new laws make fewer people barf? No

Posted on June 24, 2013 by Douglas Powell

A little over a year ago, 6-year-old Owen Carrignan of Millbury developed a bad stomachache after returning home from a sleepover. The healthy first-grader was soon hospitalized with severe diarrhea and failing kidneys. He died less than a week later from a foodborne bacteria.

The Boston Globe reports that state health officials recently closed the investigation, unable to identify the culprit food that caused Owen and another Worcester county resident — an unidentified woman in her 30s — to become seriously ill with the same strain of E. coli bacteria around the same time last year.

“We want answers, but there are no answers,” said Michelle Carrignan, Owen’s mother. “I have a hard time food shopping because I keep thinking there could be something here that killed my son.”

“We know that we won’t get to a zero-risk food supply,” said Michael Taylor, the FDA’s deputy commissioner for Foods and Veterinary Medicine. “But consumers have a right to expect that everything that can be done to prevent problems really will be done.”

The new procedures can’t come soon enough for Paul Schwarz, of Independence, Mo., who lost his 92-year-old father in 2011 to a listeria infection traced to a contaminated cantaloupe from Jensen Farms in Colorado.’

The new rules won’t address all food-safety concerns. The produce rules for overhauling the growing practices of farms to prevent contamination, for example, don’t apply to small establishments with less than $250,000 to$1 million in annual sales — the exact amount has yet to be determined.

The rules also exempt produce that is normally not consumed raw such as corn and potatoes, because the likelihood of microbes surviving the cooking or canning process is low.

Food-safety offenders to receive harsher penalties – in China

Posted on June 19, 2013 by Douglas Powell

Shanghai has stepped up its punishment for those found to be endangering food safety by removing ceilings for fines and allowing the death penalty for severe crimes, a high official from Shanghai’s top court said on Monday.

“The threshold for sending food-safety lawbreakers to prison has been lowered. Stiff penalties both legally and economically will ensure criminals do not dare to get involved in such crimes again,” said Zou Bihua, vice-president of the Shanghai High People’s Court, at a news conference.

China Daily reports the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued a judicial interpretation on May 2, which legal experts said gives clearer definitions of criminal behaviors in the food safety sector.

“For example, the law only defines those who caused serious food poisoning incidents or the like as guilty, but it was hard for courts to determine whether a behavior had caused such incidents or sickness and then declare someone guilty,” said Xu Liming, a presiding judge at the criminal division of the Shanghai High People’s Court.

“The judicial interpretation listed five behaviors that can be defined as causing serious food poisoning or disease. The courts can sentence all those who display such behaviors,” he said.

These behaviors include producing and selling livestock, poultry and aquatic animals that die of diseases or fail inspection and quarantine tests; and producing and selling infant food containing nutrients that do not conform to food safety standards.

A more extensive crackdown on lawbreakers, including people who provide assistance to those who produce or sell poisonous and harmful food, will be implemented.

Anybody who provides funds, loans, invoices, permits — or facilitating conditions such as business sites, transportation, storage, online sales channels and advertising — will be deemed an accomplice, according to the judicial interpretation.

An Italian view on food safety responsibility and law

Posted on May 4, 2013 by Douglas Powell

This column initially appeared in the Italian publication, On promoteus, where food safety friend and consultant Luca Bucchini has a weekly column called Food Wars. An edited version appears below.

In early 2009, an American manufacturer of peanut butter and other peanut-based ingredients such as paste, ordered one of the most impressive recalls in recent years.

The recall involved 3900 products, since as many as 350 different companies used ingredients by the Peanut Corporation of America (PCA).

It was not precautionary action: the contamination of peanut butter with Salmonella Typhymurium was already spreading infection and death across United States. According to estimates, at least 714 people were eventually sickened, alog with nine deaths.

Investigations later showed that PCA had obtained analytical results from external laboratories that confirmed the presence of the pathogen earlier than the recall was ordered, but managers decided to ignore them and hide them from their customers. Management even went so far as to invent false analytical results, altering those with unwelcome results and inventing results of tests never made.

If all this is true, it is difficult to disagree with the intention of the U.S. Department of Justice to prosecute and potentially have those responsible jailed. Meanwhile, PCA is bankrupt, and some managers have since explained that financial concerns contributed to a delayed recall and falsified results.

Leaders of food companies are sometimes, though rarely, forced to make a choice: consumers’ lives or corporate survival.

That decision is influenced by moral fiber, courage, and legal incentives.

If a similar case occurs in the Belpaese (Italy, aka the beautiful country), two things are likely to happen. First, if cases were not very concentrated geographically, and the number of cases were a bit less dramatic, from the epidemiological side (epidemiologists collect data on cases of disease and try to interpret them, but they must have an effective surveillance system to do their job) there would be no alert. Second, if the contamination had become known somehow by the authorities, with or without illness, managers would have faced criminal charges.

In Italy’s system, with a few recent exceptions, a company’s relevant manager is criminally responsible for the contamination of food, regardless of causes. European food law imposes a duty on same manager to immediately report to the authority and to take action to recall food as soon as he or she discovers that their food, despite all efforts, is found to be contaminated.

Since for the Italian mentality, prevention is less important than doling out punishment for cases of the disease, who communicates to authorities that their company’s food is contaminated may bring upon herself or himself a criminal trial.

It is not uncommon to hear QA managers of food companies (to whom legal responsibility has been prudently delegated by higher management) quietly say when in confidence: I would not do it. I’m pretty convinced that, when there is evidence of cases of illness, all would agree to “fall on their sword” and risk criminal charges but rarely, when you have early analytical results, you know with certainty that one of your products is causing illness and sometimes death.

The result is that the incentives in Italy are still too much in favor of providing the public the satisfaction of the pillory, in the rare cases where authorities found that there has been an issue, and not in favour of protecting people’s health.

When draconian laws are urged, does this system favors investment in better detection techniques given the dilemmas posed by to managers when they learn that their own food is contaminated, or does it encourage inertia.

When I think that, in Italy, a manager of a supermarket can be treated as a criminal because the supermarket he supervises unwittingly sold a sausage laced with Salmonella (even if manufactured by another business and even if it is virtually impossible to test each received batch), I much admire those who, if they are aware of the risks, continue to assume responsibility in the food sector.

Chronic non-compliance, so PEI changes food safety laws

Posted on November 22, 2012 by Douglas Powell

P.E.I.’s health minister says the province’s new Public Health Act aims to cure what he calls “chronic non-compliance” among those who prepare and serve food to the public.

Canadian Press reports Doug Currie says the need for an updated act, which recently passed second reading in the provincial legislature, was heightened by two high-profile cases of food-borne illnesses.

But he says planning started in 2008, when the department began looking at public health legislation in other Canadian provinces.

“There’s been chronic non-compliance under the old act. We had legislation, but there wasn’t a thrust to be able to use the act to allow owners and operators to comply with the … legislation.”

In May, health officials determined more than 200 cases of food-borne illness resulted from a fundraising supper at a local church.

The likely cause was a toxin found in cooked beef that was not stored at the proper temperature.

Following that case, food service at the Stanhope Beach Resort was halted after more than 100 people contracted norovirus from contaminated food or water.

Currie said those were prime examples of what can happen when food isn’t handled properly, something the new act will hope to address.

That’s a lot of sick people for a population of 140,000.

Still lots of people getting sick; CDC says most foodborne illness rates remain static

Posted on July 30, 2012 by Douglas Powell

Only Washington-types could take a story about recent successes and failures in foodborne illness rates and surveillance – 18 fascinating papers — and turn it into a whine about how lobbyists were excluded from access, ahead of mere mortals.

The Washington Post reports that unlike last year, the U.S. Centers for Disease Control released the data without reaching out to consumer groups and other key stakeholders who typically are notified in advance. Instead, the charts and graphs were quietly posted online Friday.

I’m not sure who these key stakeholders are, and how many of them are self-proclaimed. The solution is for CDC to publish a press release summarizing the findings, note their existence, and releasing it to everyone at the same time.

And only in Washington would people whine that delayed passage of the Food Safety Modernization Act is leading to increases in foodborne illness.

“Everyone was hoping that this new food safety law would be in place and we’d start seeing improvements by now,” said Erik Olson, a director at the Pew Health Group. “What these CDC numbers show is that unless new protections are put into place, millions of Americans are going to continue to get sick from contaminated food.”

I’m immediately suspicious of people who speak on behalf of everyone (and people who say trust me). I have yet to see a credible, detailed analysis that shows FSMA will lower rates of foodborne illness.

But that’s the bizness of Washington. They don’t seem good at it.

Four years ago, the CDC numbers yielded the same story – rates were stagnant, but still way too many sick people. There is no evidence educational campaigns do anything except make people feel like they are doing something, there is no evidence legislation does much, yet that’s always the punchline: we need more laws, we need more education.

Doesn’t work.

We need new messages using new media to really create a culture that values microbiologically safe food.

That’s what I said four years ago, it could have been 20 years ago. Same as it ever was.
The most recent figures from the Centers for Disease Control and Prevention show that the rates of infections linked to four out of five key pathogens it tracks — salmonella, vibrio, campylobacter and listeria — remained relatively steady or increased from 2007 through 2011. The exception is a strain of E. coli, which has been tied to fewer illnesses in the same time frame.

The CDC found that the most frequent cause of infection in 2011 was salmonella, followed by campylobacter.

Below are actual excerpts from the CDC summary report. All 18 abstracts will appear on bites-l as soon as I complete a long plane ride, custom(s) probing, and return to the land of unlimited Internet.

Foodborne disease is an important public health problem in the United States, with an estimated 9.4 million domestically acquired illnesses and 1351 deaths from known pathogens each year. The Foodborne Diseases Active Surveillance Network (FoodNet) tracks important foodborne illnesses, generating information that provides a foundation for food safety policy and prevention efforts. FoodNet has provided information that contributes to food safety efforts by estimating numbers of foodborne illnesses, monitoring trends in incidence of specific foodborne illnesses over time, attributing illnesses to specific foods and settings, and disseminating information. Since it started in 1996, FoodNet has been an excellent example of partnership among federal and state agencies. This Clinical Infectious Diseases supplement contains a variety of articles that provide new information on current issues; together, they highlight FoodNet’s central role in U.S. surveillance and investigation of foodborne disease.

FoodNet’s core work is ongoing active, population-based surveillance for laboratory-confirmed infections caused by 9 pathogens transmitted commonly through food, as well as for hemolytic uremic syndrome. Several articles in this supplement report on these core data, examining trends and providing regulatory and public health agencies, industry, and consumer groups with data needed to prioritize and evaluate food safety interventions and monitor progress toward national health objectives. For example, Ong et al report the dramatic decline in Yersinia enterocolitica infections since 1996, particularly among young black children. Not all the news is good, however; Newton et al [analyze data from FoodNet and the Cholera and Other Vibrio Illness Surveillance System (COVIS), showing that Vibrio infections have increased nationally. Two articles in this supplement examine FoodNet surveillance data on invasive listeriosis. The article by Silk et al summarizes trends in surveillance data from 2004 to 2009, whereas Pouillot et al use FoodNet surveillance data to estimate the relative risk of listeriosis by age, pregnancy, and ethnicity, providing new insights into variations in risk across the population. Together, these articles emphasize that to substantially decrease the incidence of listeriosis, prevention measures should target higher-risk groups, particularly pregnant women, especially Hispanics, and older adults. Hall et al examine trends in Cyclospora infection, showing that outbreaks and international travel play an unusually large role in the epidemiology of these infections and suggesting that prevention efforts would most effectively focus on foods from and travel to endemic areas.

FoodNet continuously works to improve the quality of its surveillance data and methods for analysis. In this supplement, Henao et al describe the methods and rationale surrounding the introduction, in 2011, of a measure of overall change in the incidence of infection over time using surveillance data on infections caused by 6 bacterial pathogens. This measure, which provides a comprehensive picture of changes in incidence of foodborne infections, documents a 23% decline overall in incidence for these pathogens in 2010 compared with the first 3 years of surveillance (1996–1998). Although it does not replace pathogen-specific trend data, this summary measure can help inform the development and assessment of policies and interventions to prevent foodborne illness. Another article, by Manikonda et al, reports on a study to validate the reporting of deaths in FoodNet surveillance, an important issue because deaths, although rare, are disproportionately responsible for the economic and human costs of foodborne disease. Finally, Ong et al examine the impact of case ascertainment strategies and case definitions on surveillance for pediatric hemolytic uremic syndrome in FoodNet.

Several articles in the supplement elucidate aspects of the “surveillance steps” that are necessary for a case of infection to be ascertained by FoodNet surveillance. FoodNet and many other surveillance systems for bacterial enteric infections are based on culture-confirmed infections, so FoodNet surveillance data must be interpreted in the context of the “surveillance steps” that lead to culture confirmation: the ill person must seek medical care, a stool specimen must be submitted, and the clinical laboratory must test for and identify the pathogen. In particular, the recent and ongoing shift among clinical laboratories toward culture-independent methods for detecting enteric pathogens is of great importance.

In 2011, the CDC released new estimates of the number of foodborne illnesses in the United States, the Food Safety Modernization Act was signed into law, and new national health objectives for foodborne illness were set as part of the Healthy People 2020 goals. All of these initiatives, as well as continued concern about food safety on the part of the public and policy makers, emphasize the need for precise and accurate information about foodborne disease. Regulators and other public health officials, consumer advocates, industry, and others need information on trends, high-risk populations, and the foods causing illness so that interventions can be targeted most efficiently and effectively. FoodNet provides the articles in this supplement as part of its efforts to disseminate the results of its surveillance and analytic work. Although FoodNet surveillance is conducted in a geographic area that covers only 15% of the US population, the data it generates are a valuable resource for the entire United States. The FoodNet program shows the impact that high-quality, nationally coordinated surveillance can have on public health and policy.

Provincial law in Canada to ban information on farm-based disease outbreaks

Posted on May 22, 2012 by Douglas Powell

When someone asks, What’s wrong with Kansas, I reply with, What’s wrong with Canada?

My journalism friends have long complained that the flow of information about public health – public anything – is a tinkle in Canada compared to other places.

According to a report in The Province, British Columbia’s Liberal government is poised to further choke off the flow of public information, this time with respect to disease outbreaks.

The Animal Health Act, expected to be passed into law by month’s end, expressly over-rides B.C.’s Freedom of Information Act, duct-taping shut the mouths of any citizens – or journalists – who would publicly identify the location of an outbreak of agriculture-related disease such as bird flu.

"A person must refuse, despite the Freedom of Information and Protection of Privacy Act, to disclose . . . information that would reveal that a notifiable or reportable disease is or may be present in a specific place or on or in a specific vehicle," Section 16 of the Act reads.

It is quite conceivable that the provincial government, in the event of a disease outbreak at a farm, would delay releasing a warning in order to protect the farm in question or the industry it’s part of.

In that event, should you as a citizen hear about the outbreak, or if you were an employee at an affected farm, you would be breaking the law by speaking publicly about it or bringing concerns to the media.

Will the law also apply to farms identified as sources of foodborne illness, like tomatoes from a B.C. greenhouse, or BSE traced to a B.C. farm, or stupidity traced to a government bureaucrat who lives on a farm?

The proposed law will probably have no practical effect because there is no animal disease or foodborne illness traced to B.C. farms; it’s all imported.

Canada, where complacency rules.

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