Indulge me for just a moment in an exercise in whimsy. Except as will be expressly described below, any resemblance to real persons or substances, living or dead, is purely coincidental.
Imagine if you will that in the processing of a particular foodstuff, unless care is taken during certain steps, the foodstuff will provide the consumer with a mild hallucinogenic experience. The risk of this is well-known in the industry, as are the steps–and the costs of those steps–needed to avoid this. In larger quantities and greater refinement, the drug has a serious street value and it is in fact on Schedule I of the drug lists, meaning you can’t get it even with a prescription.
A major producer of this particular foodstuff is well aware of all of these facts. But certain of its lower level managers have taken it on themselves to use these facts to boost profits, and with it their job security and remuneration. By cutting corners on costs, they have increased margins. By making it known through back channels that products including the drug are widely available under their brand names in locations near certain college campuses, they have boosted sales. On occasion, when they have been close to discovery, they have taken funds from the company’s petty cash and used them to bribe, successfully, certain federal drug agents.
Senior management of the company knows only the following: that the drug can attach to the product and give a mild high, that keeping the product free of the drug is expensive, that if the expense is not incurred, sales will suffer because some properly tested product will need to be destroyed and that there is demand for the adulterated product, particularly on college campuses. Had they looked at their financial statements with any degree of curiosity, they would have seen expenses lower, and revenue higher, than they should have been for the given level of production if the steps needed to avoid selling drug-containing products had been taken.
Now imagine the operation is exposed. All the lower level managers turn state’s evidence and testify about what senior management knew or should have known. Senior management pleads guilty and the prosecution successfully demonstrates that they were subject to the drug kingpin statutes, which mean they can be imprisoned for between 20 years and life, with no possibility of parole (if someone had died, they might have been given the death penalty).
Now let’s leave my imagination and return to reality. The only facts you need to change are these: the product, eggs, was sold not with a hallucinogenic drug but with salmonella enteridis (“SE”), which is poisonous; rather than being pushed on college campuses, the products were simply sold in refrigerated cases all over the country, and thousands were sickened by them. Millions of eggs had to be recalled. And senior management, Austin DeCoster and his son Peter, were prosecuted not under the drug kingpin statutes but under the responsible corporate officer doctrine under the Federal Food, Drug and Cosmetic Act of 1938, having pled guilty to having sold shell eggs containing SE across state lines. They were fined and, as you may have read, sentenced to three months in literally the jail of their choice.
Most commentators have called this an important signal and great deterrence to future actors and the like, without pointing out the absurdity that the penalty for doing this by poisoning people is orders of magnitude less than it might have been if all they did was to provide them a little buzz. But this wasn’t sufficient for the DeCosters and their lawyers. Continue Reading