General Counsel’s Decision Tree for Internal Investigations for the Food and Beverage Industry

Growers, manufacturers, distributors, restaurants, retailers, and other companies in the food and beverage supply chain regularly face challenges that may require an internal investigation to determine the root cause of an issue in order to evaluate how best to remediate and guard against future occurrences of a potentially harmful event. These range from industry specific concerns, such as those related to food quality, safety, labeling and promotion in compliance with the U.S. Federal Food, Drug, and Cosmetic Act and the U.S. Federal Trade Commission Act, to more general concerns, including Foreign Corrupt Practices Act (FCPA) compliance, data breaches, whistleblower complaints, risks introduced by the use of third parties and human resources issues. While having a robust compliance program can help avoid many issues, not all issues can be foreseen or avoided. This internal investigations playbook has been designed to facilitate the identification and remediation of issues effectively and consistently and is an important complement to a well-designed and functioning compliance program. It also will facilitate the in-house team’s communications with outside counsel, who have a range of experience guiding companies through these precarious situations. In addition, adherence to a well-crafted playbook helps companies meet the expectations of enforcement authorities, such as the Department of Justice (DOJ), the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), the Securities and Exchange Commission (SEC) and others, which can materially mitigate potential enforcement efforts and sanctions.