The U.S. Occupational Safety and Health Administration (OSHA) has issued a final rule governing its procedures for retaliation complaints under the whistleblower provision of the FDA Food Safety Modernization Act (FSMA). Workers who disclose food safety concerns in various industries, including transportation, are protected under the Act. The final rule, published in the Federal Register on April 21, outlines how the agency will handle complaints under Section 402 of the FSMA. Employees are protected against reprisals by entities engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food when they raise food safety issues to their employer or the government.

The U.S. Food and Drug Administration (FDA) is responsible for most of the regulations stemming from the sweeping food safety act that became law in January 2011. However, the Secretary of Labor is responsible for enforcing the whistleblower provision of the Act. Therefore, this portion of the law is under OSHA’s domain. According to the final rule, OSHA crafted the regulatory provisions governing complaints under the law to be consistent with other whistleblower regulations issued by the agency to the extent possible within the bounds of the statutory language of the FSMA.

The rule establishes procedures and time frames for the handling of retaliation complaints under the FSMA. The rule provides that complaining employees are protected under the FSMA as long as they have a reasonable belief – defined in the regulation as a subjective, good-faith belief and an objectively reasonable belief – that the complained-of conduct violated the Federal Food, Drug and Cosmetic Act. However, the complainant need not show that the conduct complained of constituted an actual violation of law.

If you need more information relating to specifics under the new rule, contact Michelle Fulmer, the Section Head Administrator of our firm’s Consumer Fraud and Commercial Litigation Section, at 800-898-2034 and she will put you in touch with one of the lawyers on the Beasley Allen Whistleblower Litigation Team.


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