Austin and Peter DeCoster have filed a petition for certiorari to review the Eighth Circuit’s affirmance of their misdemeanor convictions for selling adulterated food products in violation of the Food, Drug & Cosmetic Act, 21 U.S.C. § 331(a). There is a reasonable chance the Court will grant review, because this opinion is important not only to sellers of food products but more generally for the mens rea requirements of criminal statutes generally.
The DeCosters, father and son, were the principals of Quality Egg, which sold eggs in interstate commerce. Some of the eggs were contaminated with salmonella. The government stipulated that neither of the DeCosters knew that the eggs were contaminated. The DeCosters stipulated that they were in a position to detect and correct the salmonella contamination had they known about it. The District Court accepted their conditional plea of guilty, fined them each $100,000, and sentenced each of them to three months in prison.
A badly fractured panel of the Eighth Circuit affirmed. Judge Murphy’s opinion for the Court acknowledged that due process prohibited imprisonment for purely vicarious liability – i.e., holding an otherwise blameless corporate officer liable for the actions of a lower level employee. In the DeCosters’ case, she held, they were liable for their own failure to take action to prevent the sale of contaminated eggs. Given the importance of a safe food supply, Judge Murphy held that there was no need for mens rea – a guilty conscience – if the penalty is relatively small, there is no grave damage to the defendant’s reputation, and legislative intent supports the penalty. Thus, they were subject to imprisonment regardless of whether they intended to violate the statute or were even aware that the company was doing so.
Judge Gruender concurred. He agreed with the dissent that imprisonment based on vicarious liability would raise serious due process concerns. Judge Gruender thought that United States v. Park established a negligence standard for violations of § 331 and that the DeCosters’ admission that they had sufficient authority to detect and prevent the sale satisfied that standard.
Judge Beam dissented. He correctly observed that Park did not involve any prison time. He relied on subsequent Supreme Court opinions holding that there is a strong presumption requiring mens rea in cases involving the possibility of imprisonment. Mere negligence, Judge Beam concluded, does not satisfy that requirement.
This case points out that even inadvertent violation of a regulation can result in criminal prosecution and possibly even imprisonment. The FDA has made it clear that it intends to prosecute these kinds of violations vigorously.