Blowing the Whistle on Dangerous Food

The new national food safety law extends whistleblower protections to employees who uncover food safety problems at their workplace. This is the first time such protection has applied to food safety issues, according to an analysis by the national law firm Thompson Coburn LLP.

food-production-workersWith little fanfare, the whistleblower provisions took effect immediately upon FSMA’s passage in 2011. The rules cover companies in food manufacturing, processing, packing, distribution, holding, importation and transportation. (Whistleblower complaints actually are managed for the FDA by the Occupational Health & Safety Administration (OSHA), which manages whistleblower actions for more than 20 federal departments). In its first three years, 144 food industry whistleblower complaints were submitted.

The protections afforded whistleblowers are straightforward: employers are prohibited from firing or discriminating against any employee who speaks up about potential or ongoing safety issues, whether publicly or privately. FSMA’s Section 402 specifically prohibits employer actions such as termination or demotion, and also protects workers from any form of reprisal that might dissuade other employees from engaging in similar activity.

Section 402 is especially relevant to food scientists and technologists, who have the scientific training in food contamination and are the individuals typically assigned to oversee food safety protocols for manufacturers, notes the Canadian-based International Union of Food Science and Technology (UoFST). Protection from reprisals against these employees is especially important, UoFST notes. This may become more of an issue in the future as larger food manufacturers bring on trained microbiologists and researchers to help pinpoint food safety vulnerabilities.

What about importers? Do these whistleblower provisions apply to overseas workers in the same way that FSMA’s safety rules directly impact foreign exporters and manufacturers whose products are sold in the U.S.?

The answer is the proverbial “it depends.” The UoFST points out that whistleblower protections outside the U.S. are uneven in effectiveness. The United Kingdom prohibits retaliation against whistleblowers under its Public Interest Disclosure Act (1998). Japan and South Africa both have dedicated legislation on whistleblower protection. But, writes Gerald Moy, a retired World Health Organization executive, many whistleblower laws worldwide are limited in scope to anticorruption. Other countries may not have the regulatory infrastructure in place to handle such complaints.

By contrast, Moy notes, the inclusion of these protections in the U.S. food safety law is another demonstration of the government’s commitment to head off food safety problems before they lead to costly recalls, consumer illness (or death) and negative news reports of “unsafe” food.

The FDA wants the industry to become prevention-oriented, but instead of purely voluntary compliance, the agency has written tough new rules into the new law requiring a host of procedures to insure safe food production and holding management personally responsible for any violations.

So, in answer to what happens next at the bakery, here’s a checklist for employers under FSMA:

  1. Make certain food safety training has been implemented throughout the organization as part of an overall management food safety system;
  2. Train supervisors to deal promptly with complaints, “shop talk” or rumors of potential food safety problems;
  3. Maintain records of logged complaints and follow-up actions;
  4. Resist the temptation to punish or criticize any employee who spots a problem.

With FSMA now the law of the land, and food-borne illness prevention the guiding regulatory goal, food manufacturs just might want to reward employees who speak up with a bonus check for a job well done.

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