5 min read
Up to now, this guide has addressed legal risks that are purely business-to- business or business-to-customer. With the exception of a brief discussion of the government’s ability to compel a recall, government action has played a small role in the legal outcomes of a food safety incident. However, there are avenues for government involvement in this kind of legal incident.
Most states have food safety laws that prohibit the selling of “adulterated” foods. Back at the turn of the twentieth century, when these laws were passed, that often meant milk with water added or bread made with chalk. The legal definition is actually broader than just products with something adverse added to them. While each state has come up with its own definition of “adulterated” foods, they all pretty much mean the same thing. Most of the laws say something like, “Products are adulterated if they consist in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food consumption.” As a rule of thumb, if the unsafe condition of the food makes someone sick, it’s likely adulterated.
In addition, in most states a food product would be considered adulterated merely if it is held or processed under insanitary conditions, even if the food product itself is not adulterated. This begs the question: would a farm with an inadequate or no food safety plan in place be considered insanitary conditions (i.e., all of the farm’s products would thereby be considered adulterated)?
To take Alexi’s example, the government might see her lax oversight of whether apples are being washed as fundamentally unsafe. By deeming all the apples adulterated due to their holding conditions, the government might be able to prohibit the sale of all of Alexi’s apples, or even seize all of her apple products. Alexi might also be subject to a fine, and even imprisonment, if she failed to correct the situation.
In Washington, Idaho, and Montana, the definition of “adulterated” food includes foods that are produced, prepared, packed, or held under insanitary conditions. (RCW 15.53.902, ID Code § 37-115, MT Code § 50-31-202).
Penalties for violations can be steep:
State governments may be motivated to enforce laws prohibiting the sale of product when a food safety outbreak occurs. Of course, they can enforce the laws at any time, but for the sake of efficiency, it’s not common that agencies make investigations without some reason to believe unsafe conditions are present. We might also speculate that an agency will be motivated to use these laws if the farmer isn’t doing enough to deal with the outbreak. To enforce the prohibition on the sale of adulterated products, when necessary, the state government may seize the food products.
When it comes to processed and value-added fruits and vegetables, many more regulations apply. For farms turning apples into apple cider, for example, state laws set detailed requirements. Cider pressing must be done under a food facility license and in a certified kitchen. To be certifiable, kitchens must meet specific standards, such as the number and location of sinks, the use of specific materials for equipment, and only the use of washable wall and ceiling coverings.
This guide isn’t intended to discuss the specific rules that apply to processed product. The point is that if these rules are not followed, it opens the door to regulatory action. This risk is always present, but when a food safety incident occurs, the motivation to investigate increases. Farms violating the food safety code may be fined and have their licenses revoked. In some states, repeated and willful violations of the rules can even result in criminal prosecution. Food safety regulations are not something to mess around with.
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