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Bad China Products. Hey, It's A Criminal Thing, Part II

By Dan Harris and Steve Dickinson

About a month ago, I did a post, entitled, "Bad China Products, Hey, It's A Criminal Thing." That post was on the recent indictment of ChemNutra' and its owners for having allegedly imported tainted pet food. In the post, I speculated as to how there could be criminal liability in such an instance when it appeared ChemNutra did not know of the product problems:

This is big and it will no doubt have us civil lawyers scrambling to our books to figure out what it takes for there to be criminal liability. I am guessing there has to be at least some element of intentional act for criminal liability to apply here. In other words, those indicted must be believed to have known they were acting in contravention of the law when they made, sold, shipped out, or purchased the pet food and presumably, they knew the product was not what it was made out to be.

I ended that post by promising to" be back with more on this story when we know more." Since writing that post, my understanding of this area has greatly increased from having spent the last couple of weeks working with criminal lawyers on a batch of China import cases. I was shocked to discover that intent is NOT an element of the crime of importing tainted food. 21 U.S.C. § 331(a), prohibits ?[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded." This statute is a strict liability statute, which means one can be found guilty of violating it even if one lacks any intent or knowledge regarding the crime. In other words, if you import adulterated or misbranded food or drugs into the United States, you can be found criminally liable even if you had no idea of any problems. Section 333 sets out the criminal penalties for violating section 331:

(1) Any person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000, or both. (2) Notwithstanding the provisions of paragraph (1) of this section,[1] if any person commits such a violation after a conviction of him under this section has become final, or commits such a violation with the intent to defraud or mislead, such person shall be imprisoned for not more than three years or fined not more than $10,000, or both.

I am not a criminal lawyer and I am not trying to explain the law in detail here. I am merely pointing out that criminal liability may attach much more easily to food and drug imports than many of us imagined. Buyer beware.

Full post as published by China Law Blog on March 12, 2008 (boomark / email).