What Is Food Fraud?
Food fraud is the act of purposely altering, misrepresenting, mislabeling, substituting or tampering with any food product at any point along the farm–to–table food supply–chain. Fraud can occur in the raw material, in an ingredient, in the final product or in the food’s packaging.
Fraudulent and intentional substitution, dilution or addition to a raw material or food product, or misrepresentation of the material or product for financial gain (by increasing its apparent value or reducing its cost of production) or to cause harm to others (by malicious contamination), is ‘food fraud.’
Food fraud is the deception of consumers through intentional adulteration of food: (a) by substituting one product for another; (b) using unapproved enhancements or additives; (c) misrepresenting something (e.g., country of origin); (d) misbranding or counterfeiting; (e) stolen food shipments and/or (f) intentional contamination with a variety of chemicals, biological agents or other substances harmful to private– or public–health.
A discussion of ‘food fraud’ must include: (1) economic motivation, (2) unintended private– and public–health consequences, (3) ethical/religious concerns, (4) intended harm, and (5) criminal liability.
Since the 13th century during the reign of King John, England has had food fraud laws against diluting wine with water, adding ash to pepper, and packing flour with chalk. Food fraud and adulteration were first addressed in the USA by food laws––as far back as 1784. FDA, in the 19th century, began protecting consumers from snake oil salesman and other charlatans that preyed on the susceptible public with their alchemy–spiked tonic and elixirs. To help counter this now, the FDA has several hundred agents deployed worldwide as part of its chemical investigations division to investigate food fraud.
One of the main reasons that food fraud doesn’t get as much attention as it deserves is because the effects on the human body usually go unnoticed, or the connection between illness and fraudulent–food consumption is not clear. According to the Global Food Safety Initiative, ‘most cases of food fraud are not harmful.’ However, because the health consequences are often subtle, food fraud is not always detected.
The Top Ten most adulterated foods in the United States in 2013 were: (1) olive oil, (2) milk, (3) honey, (4) saffron, (5) orange juice, (6) coffee, (7) apple juice, (8) grape wine, (9 tie) vanilla extract, (9 tie) maple syrup. For consumers who cook with olive oil, the food safety threat is tremendous. That’s because olive oil is often diluted with peanut oil; if a consumer has a peanut allergy, it becomes a very serious––even life–threatening situation. By the time food adulteration is uncovered, the health effects––in the form of a severe allergic reaction or organ failure––has already taken place. It’s true that most food fraud cases don’t typically lead to widespread outbreaks, but that doesn’t negate the fact that food fraud is potentially dangerous and poses a very real public health concern.
Economically motivated adulteration (EMA) can result in public health consequences: (a) melamine in dairy products (China)––hundreds of thousands of illnesses and at least 6 infant deaths, (b) industrial–grade rapeseed oil, sold as olive oil (Spain)––20,000 illnesses and at least 300 deaths, and (c) mislabeled fish could have come from polluted water; if eaten by pregnant woman, mercury or cadmium could affect health of an unborn child.
In the new Preventive Controls for Human Food, during Hazard Analysis, economically motivated adulteration is limited to ‘only those agents that can cause illness or injury. For example: (a) melamine in infant milk formula, (b) lead–containing dyes in spices and candy, and (c) Sudan 1, a carcinogen, in chili powder. The regulation states ‘Do not include horsemeat for beef, corn syrup for honey, or peanuts for cumin’; when a Preventive Control is needed, a Supply–Chain Preventive Control program is typically used.
Fraudulent blending of food products with meats from undeclared species: (a) is a problem on a global scale, as exemplified by the European horsemeat scandal in 2013, (b) affects consumer rights from the economic point of view, and (c) might be a significant problem for people with ethical or religious concerns regarding the consumption of meat from species such as horse or pork.
In the late 1970s, a well–known case of ‘meat–species substitution fraud’ involved representation of kangaroo meat and horsemeat as frozen beef trimmings. Purchased from an Australian meat broker, it was used by grinders to produce ‘ground beef’ patties for a fast–food franchise operation. In 2011, a suit was filed in a state district court, by a private citizen, against another quick–service operator, claiming that the company’s Mexican–style foods did not contain ‘enough beef.’ In both cases, a qualitative and quantitative analysis system (i.e., ELISA) was used to speciate the meat samples with a level of detection down to 0.5% of the matrix. Since then, new analytical systems (using combinations of DNA barcoding, PCR, HPLC and/or MS) have been developed with a level of detection down to 0.1% of the matrix. One of the world’s largest beef–burger restaurant chains recently reported it requires grinders to randomly sample and perform meat speciation tests of incoming raw materials throughout its global supply–chain.
Chapman University in California tested ground meat and exotic–game meats for presence of beef, chicken, lamb, turkey, pork and horsemeat and reported that: (a) 38 of 48 ground meat samples were labeled correctly, (b) 1 sample was mislabeled in its entirety and 9 samples contained additional species. (c) meat from online distributors, local butchers and supermarkets, respectively, was mislabeled 35%, 18% and 6% of the time, and (d) exotic–game meat from online distributors was mislabeled 18.5% of the time. The researchers concluded that, although mislabeling could have occurred from cross–contamination in facilities that process meat from multiple species, over half of species substitutions may have been economically motivated.
A firestorm of cases involving food–fraud, stoked by greed and economical gains is growing by the year both domestically and worldwide. For example:
- China (2008) melamine in baby food; (2015) ‘zombie’ frozen meat
- Russia (2015) palm oil in milk
- Italy (2011) illegal organic produce; (2014) hydrogen peroxide on seafood
- England (2013) beef burgers containing pork and horsemeat
- Australia (2013) free–range eggs from caged hens
- Mexico (2005–present) meat from undeclared species
- USA (2009–present) Salmonella in peanuts, honey–laundering, meat from undeclared species
While usually harmless, some food–fraud incidents have resulted in serious public health consequences and, thus, illustrate vulnerabilities in regulatory and quality assurance systems that could be exploited for malicious intentional harm. When the new GFSI Version 7 guidance document is released later this year, the recommended food safety management system will consist of HACCP–based rules applied to food safety, food defense and food fraud. For food safety, HACCP will be used to deal with prevention of unintentional/accidental adulteration. For food defense, TACCP (Threat Assessment Critical Control Point) will be used to deal with prevention of intentional adulteration that is behaviorally or ideologically motivated. For food fraud, VACCP (Vulnerability Assessment Critical Control Point) will be used to deal with prevention of intentional adulteration that is economically motivated.
Examples of malicious intentional adulteration include: September 1984––A religious sect intent on disrupting local elections in The Dalles, Oregon contaminated restaurant salad bars, creating ‘a large community outbreak of Salmonellosis; September 2002––a snack–bar owner in Nanjing China spread lethal rat poison into the food of his business rival, killing 38 people and leaving hundreds seriously ill; May 2016––Kyle Bessemer, in Michigan, sprayed mouse poison on food in snack bars.
Both FDA and FSIS will soon require that food processors under their jurisdiction develop food defense plans; there are food companies that have adopted the Carver + Shock food defense plan for mitigation of bioterrorism risk that was used during the Desert Storm invasion of Iraq by the US Department of Defense.
Some food–fraud experts say that the best way to prevent adulteration is for food industry employees to speak up when they see wrong–doing. NSF International recommends encouraging whistle–blowing by company employees based on a COSO study indicating that ‘a tip’ was the most successful source of initially detecting occupational fraud.
The Food Standards Agency in the UK suspects that fellow employees should be alert for people of certain personality traits who might develop into malicious attackers. The FSA has characterized such persons as ‘extortionists’, ‘opportunists’, ‘extremists’, ‘irrational individuals’, ‘disgruntled individuals’, ‘hacktivists’, or ‘professional criminals.’
A recent eNewsletter doesn’t believe that ‘increased vigilance by shoppers’ would be worthwhile, calling detection of food fraud by observation ‘an impossible feat for even the most careful consumers’, and saying ‘that leaves just one universal solution to combat food fraud: testing.’ ‘Food fraud can only be detected for substances, chemicals and additives that are tested for. So what happens to all the contaminants that are not tested? They unfortunately go unnoticed.’
In criminal law, the infraction must be mens rea (latin for ‘with intent’) to lead to a felony conviction. Under the Federal Food, Drug and Cosmetic Act: (a) the standard for a misdemeanor is ‘strict criminal liability’ and not ‘criminal intent’; (b) executives can be convicted of a misdemeanor for ‘holding a position of authority and having had the ability to prevent a food safety violation’; (c) officials do not need proof of criminal (or, fraudulent) intent to pursue a misdemeanor conviction, which could lead up to a year in jail and a fine up to $250,000.
The FDA’s power to bring charges against corporate executives was solidified in 1975, when the US Supreme Court upheld the conviction of the president of a major grocery chain. In that case, the president was found criminally liable for the unsanitary conditions of a warehouse, notwithstanding his argument that he had delegated the responsibility for maintaining the cleanliness of the warehouse to his subordinates. The Supreme Court concluded that if a company unknowingly ships adulterated food, the management can be charged––under the Park Doctrine–– without knowledge, intent or even negligence. In each case, FDA will consider the individual’s position within the company, his/her relationship to the violation, and whether he/she was in a position (or, had the authority) to correct the violation. An executive cannot use ‘ignorance of the violation’ as a defense.
Midamar Corporation and Islamic Services of America have been ordered to forfeit $600,000 in the US District Court. Three defendants––William, Jalel and Yahya Aossey admitted to a scheme involving falsification of export certificates to ship Halal beef to customers in Malaysia and Indonesia. They face up to 5 years in jail plus a $250,000 fine for a felony conspiracy violation plus 1 year and $100,000 for each misdemeanor charge.
Stewart Parnell (Peanut Corporation of America) was sentenced to 28 years in prison based on a felony––’Intent to defraud based on emails and fabricated certificates of analysis of his peanut product shipments.’ The sentence was historic, marking the first sentence of significant jail time for causing foodborne illness. US prosecutors have won convictions in 4 other foodborne outbreak cases in the last 3 years (e.g., the DeCosters and the Jensens).
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