United States: FSMA Whistleblower Lawsuit Filed In Federal Court

Food industry should be aware of new risks associated with whistleblower protections for food and beverage company employees.

On June 6, one of the first whistleblower lawsuits under the Food Safety Modernization Act (FSMA) was filed in the U.S. District Court for the Western District of New York by a former employee of Brothers International Food Corporation. The FSMA—the most extensive change to the U.S. food safety system in more than 70 years—was signed by President Barack Obama in 2011 and directs the U.S. Food and Drug Administration (FDA) to issue numerous regulations and take additional measures to enhance food safety in an effort to minimize the risk of foodborne illnesses to consumers. To advance that broad goal, section 402 of the FSMA includes "employee protection" whistleblower provisions aimed at ensuring the food safety concerns of food and beverage company employees are taken seriously.

The FSMA prohibits an employer from discharging or otherwise discriminating against an employee for engaging in certain protected activity, including reporting concerns to his or her employer, the federal government, or a state attorney general. To qualify as protected activity under the FSMA, the employee's report need not establish that the conduct in question violated food safety laws. Rather, an employee must only have had an objectively reasonable belief that the employer's practices were violating a provision of the Federal Food, Drug, and Cosmetic Act or any order, rule, regulation, standard, or ban issued by FDA. The significant new regulatory requirements being implemented under the FSMA—including, among others, preventive controls, produce safety, and import verification—provide whistleblowers with raft of potential new areas for complaints.

Brothers International Lawsuit

The one-count complaint filed by Colin Chase, the former director of eCommerce at Brothers International, alleges that the Rochester, New York-based food and beverage company violated the whistleblower protections of the FSMA when it terminated his employment and sued him following his complaints about food safety practices at the company.[1]

Chase claims that he was terminated in July 2012 in retaliation for repeatedly raising a variety of concerns about the re-dating and sale of expired food products, including food products marketed to toddlers. Chase alleges that, upon raising these concerns with company management, he was directed to lie to customers about the reasons for the re-dating, and, after he complained, the company asked him to "prove his loyalty" by signing a nondisclosure/noncompetition agreement. When he refused to sign the agreement without first reviewing it with his attorney, Chase alleges that he was immediately terminated and escorted off of the company's premises. He claims that employees who had not complained about food safety were given more time to review similar agreements with an attorney, more latitude to negotiate the terms of such agreements, and a chance to be rehired after initially refusing to sign similar agreements.

Following his termination, Chase informed the company that he believed his termination violated his rights under the FSMA and that he intended to pursue an FSMA whistleblower claim against the company. Chase further states that, following this notification, the company filed two lawsuits against him (one of which is still pending), claiming that he wrongly stole confidential company information. Chase alleges that the lawsuits were initiated for "the sole purpose of further retaliating against [him] because he was about to make a FSMA protected disclosure to OSHA." As is permitted under the FSMA, Chase seeks back pay and front pay, compensatory and "special damages," prejudgment interest, and attorney fees. Notably, "special damages" has been construed under similar whistleblower protection statutes, such as the Sarbanes-Oxley Act, to include damages for pain, suffering, mental anguish, and an injured career or reputation.

Brothers International states that Chase was fired for lawful, legitimate reasons and that "[a]ny insinuation by Chase that Brothers' products were defective is patently false. There has never been any finding of any kind of defective products." The company states it intends to file a motion asking the court to dismiss the case immediately.

Broad Implications for the Food Industry

The U.S. Department of Labor has released statistics showing that, during fiscal years 2011 and 2012 (the two fiscal years during which the FSMA has been in effect), OSHA received a total of 38 complaints filed under the FSMA's whistleblower provisions. While it is unclear exactly how many of these complaints have resulted in a lawsuit being filed, the FSMA's whistleblower provisions pose an additional challenge to a food industry that finds itself under attack from an increasingly aggressive plaintiff's bar.

In addition, an increase in whistleblower actions has additional regulatory and enforcement implications for the food industry. Such whistleblower information will almost certainly be shared with FDA, potentially resulting in additional inspections for affected firms and increasing the likelihood of FDA enforcement action. Similarly, in cases of alleged product adulteration, FDA's mandatory recall authority (also newly granted under the FSMA) could be implicated as well as product seizure and civil monetary penalties. Finally, if the conduct in dispute involves misbranded or adulterated products purchased through federally funded programs, the manufacturer in question could be subject to liability under the Federal False Claims Act as well as other administrative sanctions, such as debarment.

As FDA implements its regulations under the FSMA, companies must keep in mind this new category of business risk and ensure that their internal procedures and training programs are updated accordingly.

[1] The FSMA requires complainants to first file a complaint with the Occupational Safety and Health Administration (OSHA). If OSHA does not issue a decision within 210 days of the filing of the complaint, the complainant can then file a lawsuit in federal court. A complainant may also sue in federal court within 90 days of OSHA's determination.

Copyright 2013. Morgan, Lewis & Bockius LLP. All Rights Reserved.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.