Just landed in Norway, and the first thing I read off the plane was Tom Gremillion’s new piece for the Consumer Federation of America, “Food Safety and Corruption.” Read the whole thing. Nobody in Washington connects the dots on food safety better than Tom, and nobody says it more plainly. Thank you, Tom — for the piece, and for the work CFA does every day.
Tom was also kind enough to quote something I wrote recently: eighteen prosecutions in forty years — that is the entire history of food crime enforcement in America. And every food safety executive I have ever deposed has told me some version of the same thing: the budget requests get approved after somebody gets prosecuted, not after somebody gets sick.
Tom builds the case well. But after four decades of suing food companies and sitting across the table from their executives, I want to add a few arguments of my own — because his piece is even stronger than he lets on.
A civil check is a line item. A criminal charge is personal.
The $385 million Abbott settlement sounds enormous. It is not. It is paid by shareholders and priced by insurers, and it will be absorbed into the cost of doing business by a company with over $40 billion in annual revenue. What civil settlements have never done — in my experience, not once — is change behavior in the boardroom the way personal criminal exposure does. Stewart Parnell is serving 28 years for shipping Salmonella-laced peanut paste. Austin “Jack” DeCoster and his son went to jail over contaminated eggs. The Jensen brothers were prosecuted after their cantaloupe killed 33 people. Those cases echoed through every executive suite in the food industry. A civil check, however large, does not.
And the Abbott facts were tailor-made for prosecution. Under the Park doctrine, executives can be held criminally responsible for food safety failures even without proof of intent. Here, DOJ alleged Abbott “knowingly” failed to adopt safeguards against Cronobacter at Sturgis and withheld information from FDA about microorganisms in the facility. Knowing conduct plus concealment from the regulator is precisely the aggravated fact pattern that has historically turned Park misdemeanors into felony territory. That the government had those allegations in hand — and had opened a criminal investigation — and still settled civil-only tells you everything about the Executive Order declaring criminal enforcement of regulatory offenses “disfavored,” and the disbanding of the DOJ unit that brought these cases.
Congressional oversight is deterrence too — and it has collapsed.
In 2022, after four Cronobacter infections and two infant deaths, House and Senate panels hauled in the FDA Commissioner and Abbott executives and grilled them on national television. Today, more than 50 babies have been hospitalized with infant botulism linked to formula — same product category, a worse acute toll — and the 119th Congress has not held a single hearing. Executives prepare for oversight hearings the way they prepare for depositions: badly, and with fear. Take the hearings away and you have removed another reason to spend money on food safety before, rather than after, the outbreak.
You cannot deter what you cannot detect — and the numbers will lie about it.
Here is the part that should worry hopeful reformers most. Cutting FoodNet surveillance from eight tracked pathogens to two does not reduce foodborne illness by one case. It reduces the counting of foodborne illness. And that sets up a perverse feedback loop: fewer counted outbreaks will be trumpeted as proof the system is working, which will justify the next round of cuts. When the outbreak statistics improve over the next few years, ask what we stopped measuring, not what we started preventing.
The Taylor Farms cyclospora investigation shows what the detection side costs in real time. The company took roughly a week to hand FDA the grower location data that the final traceability rule — delayed by this Administration for two and a half years — would have required within 24 hours. A week, during an active outbreak, is not a paperwork delay. It is contaminated product staying on shelves and in refrigerators while investigators wait.
Lawyers like me are the backstop, not the substitute.
I have spent my career getting compensation for families after the fact. I am proud of that work, and civil discovery has repeatedly pried loose what companies knew and when they knew it. But let’s be honest about what civil litigation cannot do: it cannot put anyone in front of a grand jury, and it arrives only after the funerals. When the government steps back from criminal enforcement, it is not deregulating — it is outsourcing accountability to plaintiffs’ lawyers and grieving parents. That is a policy choice, and families are the ones who pay for it.
Deterrence and detection. Take away the credible threat of prosecution, blind the surveillance system, and slow-walk traceability, and you should expect exactly what we are seeing: more outbreaks, more sick kids, less accountability.
Thanks again, Tom, for saying it plainly. As he puts it: hopeful food reformers should take notice — and beware.