Little noticed by the general public but of intense interest to the food industry, in January 2011, President Obama signed the most sweeping food safety legislation of the past 70 years. The FDA Food Safety Modernization Act (the “FSMA”) will require many food companies to institute new safety protocols, will result in increased FDA inspections, and for the first time grants the FDA with the authority to mandate food recalls.
While many of the provisions of this new law do not take effect until 2012 or depend upon upcoming FDA rulemaking, the FSMA has a “whistleblower” provision which took effect immediately. This provision provides sweeping protections to employees who report in good faith on food safety violations related to food manufacturing or other food supply chain activities. If due to such good faith reporting, such an employee is unfairly discharged or discriminated against with respect to compensation or other terms and conditions of employment, very costly fines can result.
Whistleblower cases are rare but can be crippling to a company if they occur as they can be quite punitive in nature. Many industries or categories of companies have similar whistleblower policies related to other areas of the law, but whistleblower protections with respect to food safety is a new development.
To reduce the risks relating to potential whistleblower claims, we recommend that companies in the food industry immediately implement an FSMA whistleblower policy that provides a procedure for the reporting and investigation of food safety complaints by employees, and that prohibits retaliation against good faith reporting of complaints. In addition, we recommend that companies consider providing senior management with whistleblower training so that management properly responds to food safety complaints by employees. If handled correctly, this new law can be turned from a possible negative into a huge positive – steps towards improving the quality of your products by providing accountability throughout the organization.
Thompson & Thompson LLP has prepared a model FSMA Whistleblower Policy that can be promptly tailored to your company’s particular circumstances. Please feel free to contact one of our attorneys for more information.