With a Felon at the helm, what would you expect?

I have tried to steer clear of politics with respect to the Felon in Chief, but this is nuts, or at least peanuts.  According to yet another edict from the White House, it is now the policy of the United States that:

(a)  Criminal enforcement of criminal regulatory offenses is disfavored.

(b)  Prosecution of criminal regulatory offenses is most appropriate for persons who know or can be presumed to know what is prohibited or required by the regulation and willingly choose not to comply, thereby causing or risking substantial public harm.  Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.

(c)  Strict liability offenses are “generally disfavored.”  United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978).  Where enforcement is appropriate, agencies should consider civil rather than criminal enforcement of strict liability regulatory offenses or, if appropriate and consistent with due process and the right to jury trial, see Jarkesy v. Securities and Exchange Commission, 603 U.S. 109 (2024), administrative enforcement.

(d)  Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses.

Typically, every crime has two elements—a bad act and a culpable state of mind (mens rea, which generally means intent or recklessness). Section 333(a)(1) of the FDCA, the misdemeanor provision, is noteworthy because it creates one of the few true strict liability crimes in federal criminal law. That is, the government does not need to prove a state of mind to obtain a conviction. If a food product is misbranded or adulterated and is distributed into the channels of interstate commerce, a crime has been committed. Depending upon the nature of the conduct, a violation of the Food, Drug, and Cosmetic Act may be a felony or a misdemeanor. Misdemeanor violations of section 331 are punishable by a maximum prison sentence of one year and a maximum fine of $100,000.

Perhaps the folks at the Peanut Corporation of America would still be prosecuted as a felony, but they certainly argued that they did not know the peanut butter was tainted with Salmonella. However, if this new policy stands it is not likely the Blue Bell, Kerry, Con Agra, Chipotle, Wright County, Odwalla nor Jensen Farms would have been prosecuted, and it is likely that few prosecution will occur in the future.

We live in interesting times.

Republished with permission from Bill Marler and Marler Clark. Copyright (c) Marler Clark LLP, PS. All rights reserved.