In light of the recent, and ongoing, spate of recalls of food products, many have been left wondering: “How could this happen? How can contaminated food be allowed into stores and homes? Was there no one to speak out?”
Our Chicago personal injury lawyers are well acquainted with how dangerous foods and products make their way into the stream of commerce, and into consumers’ homes. Government oversight, unfortunately, offers little to no protection – government agencies, from the Food and Drug Administration to the Consumer Product Safety Commission, are woefully underfunded and understaffed. Random and rare “spot checking” of safety and compliance with regulations simply has no chance of truly protecting against dangerous products.
That danger is compounded when those who have the ability to detect the problems at the source are too afraid of the consequences to themselves to speak out and warn the government and the public. Workers who notice dangerous or unsanitary conditions in plants have a choice to make: speak out, and protect nameless, faceless others from potential danger, or stay quiet and keep their jobs. While we would all love to see workers choose to speak out, it is unsurprising that, faced with the loss of livelihood and the ability to support their families, many do not.
That’s why our products liability attorneys are so pleased with the new whistleblower provisions in the recently-passed Federal Food Safety and Modernization Act. Most of the press surrounding this new legislation has focused on the Act’s provisions attempting to minimize the risk of foodborne illness (such as salmonella), streamlining food recalls, and easing the burden of tracing contamination outbreaks. But we believe that the new whistleblower provisions of the Act will prove to be the most significant, and the most beneficial to public health and safety.
The new provisions apply to all workers at FDA-regulated food companies. Under the Act, these workers cannot be fired, demoted, or even denied a raise or a promotion if they speak up about food safety violations. And the process set up for enforcing the Act’s whistleblower provisions are themselves protective (like many such employment laws): workers need only prove that they made a complaint prior to the challenged actions by the company, and the burden then shifts to the employer to demonstrate that it would have taken the action anyway.
Our injury and wrongful death attorneys are disappointed, however, at the limited scope of the Act’s whistleblower provisions. Because the Act applies only to FDA-regulated companies, the critical meatpacking and poultry industries (among others) are left unprotected. The bill’s sponsors have indicated that they intend to introduce new legislation expanding the whistleblower protections to these areas. We urge them to do so, and swiftly. While some protection is better than none, we believe that whistleblower protection in all aspects of the American food supply chain is absolutely necessary and critical.
Those who doubt the need for such protections need only look as far as the case of Kenneth Kendrick, the Peanut Corp. of America worker who went public in 2009 with information about conditions at the company’s Texas plaint, including rat infestations and bird droppings in the peanut products. It is worth noting that, even before the fatal salmonella outbreak emanating from the plant, Kendrick had emailed the FDA about these issues – and received no response, and triggered no corrective action.
As a result of his decision to speak out, Kendrick was fired from his subsequent employment at another FDA-regulated company. Once a professional, Kendrick has since been unable to find work other than menial labor. If the new Act had been in place, Kendrick would have been protected.
For a free consultation with an experienced Chicago injury lawyer at Passen & Powell, call us at (312) 527-4500.