When President Obama signed the Food Safety Modernization Act (FSMA) into law in 2011, it was described as the most sweeping reform of the nation’s food safety laws in nearly a century. Public health advocates hailed the law for shifting regulatory authority from reaction to prevention. What received less attention was a first-of-its-kind provision that protects workers who expose food safety lawbreakers.
The law’s whistleblower provision, also known as Section 402, amends the federal Food, Drug and Cosmetic Act to provide “protection to employees against retaliation by an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food” for reporting or testifying to a violation of the Food, Drug and Cosmetic Act or for refusing to participate in activities the worker “reasonably” believes to be a violation. Just a few weeks ago, OSHA issued its final interim rule on the whistleblower provision, outlining the agency’s procedures for handling FSMA-related complaints of employers retaliating against employees who raise food safety concerns. The provision is the first food industry-specific law designed to protect whistleblowers.
“It’s the gold standard of whistleblower protections — the Cadillac version,” said Amanda Hitt, director of the Food Integrity Campaign at the Government Accountability Project, a whistleblower advocacy and protection organization. (Here’s an example of the new whistleblower provision in action.)
Previously, a patchwork of different state and federal laws might have protected some food industry whistleblowers, Hitt told me, but left others with little recourse if they were fired after speaking up. However, with the new FSMA provision, “we get a nice uniform exception for the safety of public health,” she said. In a very real way, the whistleblower provision creates “civilians who are deputized to oversee food safety, to become inspectors in real time on the floor,” Hitt noted.
“Any time you get a uniform statutory set-up, you’ll get a much better informed workforce,” Hitt said. “With a patchwork that varies from state to state, you won’t get that sort of education inoculation. …What we would love to have is a totally educated workforce, but that’s probably not going to happen. What usually happens is you get better trained (human resources) staff and better educated industries and you hope they have appropriate training around whistleblower activity.”
Even though one wouldn’t imagine that the food industry favors whistleblower protection, Hitt said that getting the whistleblower provision included in FSMA wasn’t particularly difficult. Hitt’s colleague Tom Devine, legal director at the Government Accountability Project, said FSMA was swept up in a wave of whistleblower rights that Congress routinely wrote into major regulatory legislation between 2006 and 2010. Devine said that not only was the Democratic majority at the time sympathetic to whistleblower rights, but the law also followed a “major paradigm shift in corporate speech” with passage of the Sarbanes-Oxley Act, which was crafted in the wake of corporate frauds such as the Enron scandal. Sarbanes-Oxley puts in place criminal penalties for retaliating against whistleblowers.
While the FSMA provision is the first food industry-specific whistleblower protection, Devine noted that the industry’s workers had some prior protection “through the backdoor of other statutes.” For example, if the food company is publically traded, a whistleblower would be protected via Sarbanes-Oxley, though that worker would most likely be an accountant or bookkeeper, not someone who’d witness a food safety violation. Whistleblower protections written into environmental laws, such as the Clean Water Act and Clean Air Act, could also apply to food industry workers, depending on the violation being reported. Still, the FSMA provision is the first to specifically protect food industry workers and apply to food manufacturing practices.
“Whistleblower protection creates a safe channel for the free flow of information from the front lines where food safety breakdowns occur to all of society’s stakeholders who should be warned about them,” Devine told me. “(The FSMA) whistleblower provision reflects the current gold standard for free speech rights in the private sector. It was a landmark breakthrough for food safety.”
Gaps in protection
The provision isn’t perfect, though. First, it only applies to food industries that come under U.S. Food and Drug Administration authority. Whistleblowers in food industries regulated via the U.S. Department of Agriculture, such as beef and poultry producers, aren’t covered. Also, the complaint process, which is overseen by an OSHA investigator, has some gaps too, Devine said. For example, once OSHA makes its preliminary finding that a worker was a victim of retaliation, the agency gives the employer a chance to argue that finding. However, the worker doesn’t get the same chance to defend the preliminary finding. In other words, Devine said, once OSHA issues a preliminary finding, the worker is effectively shut out of the process.
Another big gap is that the provision doesn’t pin down who’s responsible for educating workers on the new whistleblower protections.
“The law should have had a provision that required every employer to post the rights and train its staff, both management and employees, in the new rules of the road for freedom of speech, but that didn’t happen,” Devine told me.
Devine said that retaliation is a “very significant barrier to exposing the truth,” noting that even employees with comfortable salaries can find themselves bankrupt due to legal expenses. During his career, Devine has worked with about 400 food industry workers, noting that whistleblower disclosures have been “indispensible” in stopping government attempts to deregulate meat and poultry inspection.
Hitt added that whistleblower protections not only help level the playing field between employer and employee, but between companies and consumers.
“Whatever rights consumers enjoy implies an ability for employees to speak up safely,” she said.
According to the Centers for Disease Control and Prevention, food-borne illness affects about 48 million Americans every year, of which 128,000 people are hospitalized and 3,000 die. Researchers estimate that food-borne illnesses cost the country between $14 billion and $16 billion every year in medical costs, lost productivity and premature death.
To learn more about whistleblower protections and the food industry, visit the Food Integrity Campaign.
Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for more than a decade.