Friday, January 23, 2015

Food safety infringement-Who will go to jail?

If a food sample is found to be below the standards prescribed or is not safe as per the laid down criteria, who is to be blamed? The retailer, wholesaler, distributor, the warehouse owner or the manufacturer. It is true that the onus of proof regarding food safety and quality squarely lies with the manufacturing company. Unfortunately if the company is in the public sector, cooperative sector, small scale sector or corporate sector how can the government prosecute a company? Of course government can cancel the license or impose heavy fines but if the crime is serious some one has to go to the jail after due judicial decision to that effect. Who will go to the jail? Each manufacturer is supposed to designate one person as the "fall guy" for going to jail if there is an indictment under the food safety law. Is this fair? Probably such issues are not peculiar to India as reflected by the recent debate in a country like the US regarding the rationale of sending one person to jail for the fault of the system. Read further below:

One high profile case was the prosecution of Eric and Ryan Jensen in Colorado. This case is particularly scary because federal prosecutors used the Park Doctrine to prosecute the Jensens. The Park Doctrine creates strict liability. It provides that a responsible corporate official can be held liable for a first time misdemeanor.  (and possible subsequent felony) without proof that the corporate official acted with intent or even negligence, and even if such corporate official did not have any actual knowledge of, or participation in, the specific offense. It means executives may be held criminally responsible for the short-cuts, negligence, wrong-doings of their employees, simply because they "should have" known or supervised or simply because they were in a position of authority over employees or organization that committed wrongdoing. Executives can no longer insulate themselves from prosecution simply because they aren't in the trenches. This can be a daunting proposition for executives of large corporations that are managing hundreds or thousands of employees and have the inability to monitor everyone and everything at all times.   The Jensens were the primary principals in a farming operation known as Jensen Farms in Granada, Colorado.  Jensen Farms supplied cantaloupe to the likes of Walmart and Kroger. The Jensens were tasked with, among other things, operating a conveyor system that cleaned and packaged cantaloupe from the farm.  In or around May 2011, the Jensens revamped the conveyor system that cleaned the cantaloupe. The new conveyor system was never outfitted with the chlorine spray function, which would have reduced the risk of microbial contamination of fruit.  Starting in or about July 2011, Jensen Farms sent out cantaloupe contaminated with listeria that the Government alleges and the Jensens conceded killed at least 33 individuals and caused illnesses in at least 147 people.  The Jensens pled guilty to misdemeanors and were sentenced to a five year probation terms with six months home detention. The prosecution of Eric and Ryan Jensen is significant because there was absolutely no evidence that the Jensens knew the cantaloupe was adulterated before it was sent out into commerce. Instead, all the Government could show is that the Jensens should have been aware that the cantaloupes could be contaminated because the chlorine spray was not used." 

In India a deputy manager of a large cooperative dairy was sentenced for imprisoned for 6 months in May 2014 after one of the samples supplied from his unit was not found to conform to mandatory specifications. One can only sympathize with this official because the punishment is for a lapse on the part of the production system staffed with many workers at different levels. In a manufacturing facility hundreds of workers might be working and the management system could be several tier deep and how can one particular individual be held responsible for the collective failure? After all the employees are paid to work under certain well laid down guidelines and disciplined way but does the pay include the risk involved in going to jail for faulty products from the production line? What is the responsibility of the top management or the owners of the factory when such incidences take place? As they are the beneficiary when it comes to profit taking, logically they should be the one who should go to jail. The government must separate organizations and individuals when it comes to food laws infringement. While individuals who are proved to be adulterating the food callously ignoring the health dangers of the consumer could be punished by imprisonment, organizations must be monetarily punished to the maximum extent possible which can hit them where it hurts. The impact of jailing can have long term implications as less and less persons will opt for training in food technology because of such a "Damocles sword" hanging over their career!


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