New Food Safety Law Contains Protections for Whistleblowers

Mar 01, 2011   

Food industry workers turned whistleblowers have been faced with retaliation from their employers. However, thanks to a new provision in the sweeping food safety law signed by President Barack Obama last month, workers have gained protection. President Obama signed the FDA Food Safety Modernization Act (FSMA) on January 4th, 2011. The FSMA imposes safety standards and allows the U.S. Food and Drug Administration (FDA) greater authority to regulate tainted food (see our previous blog here).

Included in the FSMA is a provision (Section 402) to ensure that food industry employees will not face retaliation for any participation in proceedings concerning violations of the Food, Drug, and Cosmetic Act (FD&C Act). This provision serves to encourage employees to come forward, as they may now disclose food safety concerns without the fear of being terminated for speaking out on what they believe are safety violations. The provision provides that “[n]o entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food may discharge an employee or otherwise [. . .]” alter the terms and conditions of employment as a result of the employees participation in providing information concerning a violation of the FD&C Act. This provision provides whistleblowers protection from various types of employment-related consequences that may otherwise result from disclosing violations. While the provision protects employees from retaliation after disclosing information directly to the FDA, it also extends to disclosures voiced to employers, as well as an employees refusal to perform any activity reasonably believed to be in violation of the FD&C Act. If an employee is terminated or otherwise discriminated against in violation of this section, various forms of injunctive and compensatory relief are available to make the aggrieved party whole. The types of relief that may be granted include reinstatement, back pay and other special compensation, such as attorneys fees and other costs associated with litigation.

Because the FDA is unable to catch all food violations, whistleblowers are a critical resource to help warn the public of potential health hazards related to food. The new protections are designed to provide workers a greater sense of security in reporting problems to managers without fear of being fired, demoted or being subjected to other adverse employment actions. Ideally, the protections will allow companies to become aware of and provide quicker responses to potential issues before the problems can escalate to wide-spread public health concerns.

For more information on the FDA Food Safety Modernization Act and the Whistleblower protections, please contact us at