February 25, 2011

Food Safety Modernization Act Contains Whistleblower Protection for Food Industry Workers and Possibly More

by Elizabeth Murphy

FSMA.bmpIn early January, President Obama signed into law the Food Safety Modernization Act ("FSMA"), which instituted broad changes to the regulation of the nation's food supply. Equally sweeping but less publicized was a whistleblower provision contained within, providing protection for employees of the legislation's covered entities.

Section 402 of the FSMA applies broadly to any "entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food." The provision would prevent such an entity from discharging or taking adverse employment action in retaliation for certain protected activities. Protected activities covered by Section 402 include, among other things, reporting to internal or external (such as state or federal agencies) sources, or refusing to participate in, potential violations of the FSMA. With regard to the degree of certainty a whistleblower must have to receive protection under Section 402, the standard is fairly forgiving: all that is necessary is a reasonable belief that malfeasance is afoot.

The burden of proving causation also favors the whistleblower, as a complainant under Section 402 would only have to show that the protected activity was a "contributing factor" to the discharge or adverse employment action. In contrast, an entity defending itself under the provision would have to show by clear and convincing evidence that the same adverse employment action would have taken place regardless of the protected activity.

Though the protection does not extend to industries regulated by the U.S. Department of Agriculture (and, as such, does not cover meat and poultry workers), the implications for employers are broad in scope. As one legal analyst points out, the FSMA refers to the Federal Food, Drug, and Cosmetics Act. This could potentially mean that whistleblower protection could reach beyond food products, into the realm of drugs and cosmetics, even though the whistleblower provision is directed to the food handling and processing industries.