FSS 2023: Legal Insights to Sharpen Your Food Safety Focus—and Stay Out of the Courtroom!

The closing session of the 2023 Food Safety Summit, which took place on Thursday afternoon, featured a panel discussion among prominent attorneys who work on behalf of consumers and industry—with all advocating on the side of food safety. The internationally recognized, expert lawyers discussed the common gaps and weaknesses they see in company operations, culture, and regulatory adherence that lead to adverse events, such as foodborne illness outbreaks and recalls.

Panelists included William (Bill) Marler, Managing Partner at Marler Clark: The Food Safety Law Firm; Shawn Stevens, Founder of Food Industry Counsel LLC; Sharon Lindan Mayl, Partner at DLA Piper and former Senior Advisor for Policy to the Deputy Commissioner for Food Policy and Response at the U.S. Food and Drug Administration (FDA); Matthew Lash, Assistant Director of the U.S. Department of Justice (DOJ) Consumer Protection Branch; and Maile Gradison, Partner at Hogan Lovells. The session was moderated by Adrienne Blume, Editorial Director of Food Safety Magazine.

The panelists first explored ways in which they have seen companies—particularly leadership—succeed or fail at achieving the goal of integrating food safety into company culture, thereby reducing business risk. Mr. Stevens explained that the biggest pitfall he sees is neglecting to invest adequate resources in food safety, however, pushing leadership to understand the gravity of food safety and building a robust food safety culture can drive the desire to invest in food safety. Mr. Lash followed Mr. Stevens to explain DOJ’s role when taking legal action in the event of food safety incidents. He explained that a company’s level of food safety training and investments can help DOJ decide whether to bring a case—criminal or civil—against that company. He stressed that properly incentivizing food safety controls can make all the difference.

Ms. Gradison also supported the importance of investing in food safety, stating, “You can either spend money on the front end or the back end… [food safety] is a competitive advantage when your goal is to to stay on the market and keep selling food.” Following Ms. Gradison’s comments, Ms. Mayl expressed that it is readily apparent to regulators how integral food safety culture is to a facility, saying, “Regulators will often say they can tell how strong a facility’s food safety culture is within the first ten minutes of an inspection.” Mr. Marler rounded out the panelists’ thoughts on the first question by sharing how, in the event of a food safety incident, a sincere apology and commitment from the offending company to do better in the future can go a long way.

Also discussed were the "red flags," gaps, or areas for improvement that companies need to consider to help prevent legal or enforcement actions. Mr. Marler began by expressing that a common failing of offending companies is “simply not paying attention,” or lacking a sense of food safety culture. “There’s always opportunities to turn the bus around before it careens off a cliff,” he said.

Mr. Stevens added that the larger the distance between frontline food safety professionals and corporate leadership, the redder the flag. He stressed the importance of educating corporate leaderships about culture through compassion, commitment, and communication. Ms. Gradison also explained that subpar environmental monitoring programs, driven by a fear of finding an issue, is a critical red flag. Additionally, Ms. Mayl explained the importance of having a recall plan in place for the event of a food safety incident. Mr. Lash also stressed the importance of communication in the event of a crisis, which is something that DOJ will examine in criminal investigations.

Next, the panelists talked about how companies can balance their priorities to stay on top of regulatory demands such as FSMA while keeping food safety and quality at the forefront, as well as the corporate and personal consequences for failing to do so. Ms. Mayl mused that the two priorities do not necessarily have to be “balanced”; rather, the two play into one another. However, proactive monitoring and information sharing are effective strategies in such a balancing act.

Mr. Lash also shared what consequences companies may face in the case of noncompliance, from fines, to the personal stress of enduring an investigation, and in extreme cases, jail time. Ms. Gradison then remarked upon the power that industry has when it works together to brainstorm how to balance regulatory compliance and other priorities. Finally, Mr. Marler explained the concept of “strict liability,” which is “liability without fault,” and stated that “the only way to prevent a problem is to prevent the problem.”

Next discussed was what companies can do in the event of a crisis, such as a foodborne illness outbreak or a recall, as well as the pitfalls that companies encounter during crisis management. Strategies shared by the panelists included having a recall plan and team in place prior to an event, training teams through crisis exercises, considering “what would jurors think?” when making decisions during a crisis event, having a corrective action plan and communicating with regulators about progress on those corrective actions, and thinking about root-cause analysis.

The panelists also listed some of the positive changes or effects they have seen in company operations, the wider industry, and food safety in general as a result of legal and regulatory interventions. Ms. Mayl shared that the biggest changes she has seen is the move from reactive to preventive mindsets, the use of third-party audits, and improved relationships between industry and FDA, which have been accelerated by FSMA. Similarly, she believes the recently issued Food Traceability Final Rule will be a game changer.

Ms. Gradison stated that she has observed an evolution in companies’ willingness to keep check on one another within the supply chain. She also thinks that DOJ prosecutions have motivated industry to keep a keen eye on food safety. Mr. Stevens shared that, since the Jack in the Box recall in the early 1990s, industry has been on a food safety journey and attitudes have changed for the better. Mr. Lash finished by sharing how he has witnessed a genuine desire to improve food safety throughout industry, specifically by leveraging emerging technologies.

Finally, an audience question-and-answer session provided valuable insight to inspire action at individual organizations to sharpen focus on food safety and stay out of legal trouble. Topics broached included how crucial sanitation is to food safety, strategies for increasing corporate suite awareness about their food safety liability, the usefulness of recall insurance and the pertinence of having solid contracts with suppliers, and the extent to which corporate leaders are held legally accountable for food safety failures.

The 2023 Food Safety Summit took place at the Donald E. Stephens Convention Center in Rosemont, Illinois from May 8–11. Select sessions, such as the closing session, were broadcast live and can be viewed on demand for one year. Register to access!