Last week on April 27, 2016 the US Intellectual Property Rights Center presented US Senate testimony about the “Counterfeits and Their Impact on Consumer Health and Safety.” Food was not specifically mentioned but it is within scope. These law enforcement agencies are designed, built, and reinforced for enforcement and investigation. This leads to the food industry question of “What is the role of a government agency in Food Fraud prevention?”
US IPR Center
The US Intellectual Property Rights Center (IPR Center, www.IPRCenter.gov) is an interagency entity created to focus on law enforcement and investigation of intellectual property rights (IPR) infringement. IPR includes trademarks, copyright, patents, and trade secrets. From the testimony, “The IPR Center’s mission is to address the theft of innovation that threatens U.S. economic stability and national security, undermines the competitiveness of U.S. industry in world markets, and places the public’s health and safety at risk.”
The testimony defined the IPR Center focus areas as investigation, intelligence gathering/ dissemination, and education:
- coordinating investigations of IP violations;
- conducting and coordinating domestic and international law enforcement training on IP investigations;
- coordinating with CBP activities to prevent the importation or exportation of IP infringing merchandise;
- supporting international interdiction of prohibitive IP merchandise destined for the United States;
- collecting and integrating domestic and international information on IP infringement;
- disseminating information on IP infringement to other federal agencies;
- developing and implementing, in coordination with CBP, a risk-based alert system to improve targeting;
- coordinating with U.S. Attorneys to develop expertise in IP investigation and prosecution; and
- conducting private sector outreach and information sharing.
IPR Center Senate Testimony
The IPR Center is often asked to present testimony to the US Congress to provide expert insight on specific topics or to review their activities. On April 27, 2016 the IPR Center presented testimony to a US Senate Sub-Committee on the topic of “Counterfeits and Their Impact on Consumer Health and Safety.”
Others presenting (officially referred to as “witnesses”) were IPR Center Director Bruce Foucard, US Patent and Trademark Office Attorney Conrad Wong, US Chamber of Commerce CEO David Hirschmann, Proctor & Gamble (health and beauty products) Global Brand Protection Leader Shelley Duggan, and Revision Military (protective glasses) Senior Director Greg Maguire. [Note: As of May 2, 2016 only their prepared statements were available and the full transcript was not available – often the most insight can be gained from the question and answer period.]
The Role of Government Agencies
The IPR Center – like the UK Food Crime Unit, INTERPOL Operation Opson, and the EC Food Fraud Networks – are meeting the goals and objectives set by their stakeholders. They are a law enforcement entity under the Department of Justice. Most of the partners of the IPR Center are also law enforcement agencies or have law enforcement responsibilities (e.g. the FDA Office of Criminal Investigations – FDA-OCI).
As covered in a previous MSU Food Fraud Initiative blog post on the INTERPOL Operation Opson, the effectiveness of enforcement and investigation should be judged by the contribution to prevention. This government- or market-wide activity is beyond just one agency or department. This is an extremely complex and challenging goal but an effort that will efficiently and effectively protect the consumer health and the economy.
Guidance to US Attorneys
Law enforcement can enforce and investigate, though the role of prosecution is carried out by the Judicial Branch of government led by the US Attorneys. This was covered with a food example briefly in a previous blog post, with the emphasis on scope and scale of the infringement (e.g. prioritize big and dangerous incidents) and efficient judicial proceedings (e.g. short, lengthy sentences, and high rate of convictions).
In “Deciding Whether to Prosecute an IP Case” the DOJ prioritizes cases by the nature and seriousness of the offense defined by (1) health or safety issues, (2) scope of the infringing or counterfeiting activities, (3) the scale of infringing or counterfeiting, and (4) the number of participants involved in the organized criminal group. The second major consideration is “The Deterrent Effect of Prosecution.” The guidance stated: “Deterrence of criminal conduct is one of the primary goals of the criminal law. … Some defendants may respond to such civil remedies by changing the item upon which they are infringing, such as counterfeiting shirts. … others close shop only to quickly reopen under a different corporate identity.”
The guidance specifically states “limited federal resources should not be diverted to prosecute inconsequential cases or cases in which the violation is only technical.”
Application to Food Fraud – Prevention
The IPR Center has been a tremendous leader in coordinating and organizing US and International law enforcement and investigations. INTERPOL Operation Opson has played an extremely important and significant role in protecting the food supply chain. The media has continued to investigate and publish reports of Food Fraud. Food Agencies have been responding to consumer and legislative branch pressure to more holistically address the health and economic impacts of Food Fraud. The Governments and Food Agencies have begun funding research projects for authentication and integrity, such as the European Commission’s Food Integrity Project. In parallel, there have been industry activities focused on food safety, traceability, food defense, and Food Fraud. The most significant food industry activity is led by the Global Food Safety Initiative (GFSI) and their requirements for a Food Fraud Vulnerability Assessment and a Food Fraud Mitigation Plan.
There is an emerging focus on: How much is enough? (e.g. detection, deterrence, enforcement and prosecution) How do we measure success? What is success? These interdisciplinary and complex questions are arising because we have all been working so hard in this area. It is an ideal time to step back and review “what is the role of government, industry, associations, and academics in Food Fraud prevention.” The group of government, industry, associations, and academics is referred to as a “public-private partnership.”
The IPR Center testimony reinforces the efforts that are underway in IPR and product fraud detection, deterrence and prevention. Our Michigan State University research team has just submitted a research manuscript to a scholarly journal on “The Role of the Public-Private Partnership in Food Fraud Prevention” (see Figure 1). This builds upon our recently accepted article “Food Fraud Prevention: Policy, Strategy, and Decision-Making – Implementation Steps for a Government Agency or Industry.” That article, itself, implements another recently accepted article “Introducing the Food Fraud Initial Screening Tool (FFIS).” This also is supported by methods presented in another recently published article (April 26, 2016) “Addressing the Risk of Product Fraud: A Case Study of the Nigerian Combating Counterfeiting and Sub-Standard Medicines Initiatives.”
Food Fraud is a major focus for industry and governments. There are tremendous and major efforts underway. It is encouraging to see coordination among efforts and across the public-private space. The Food Fraud prevention efforts are gaining momentum and with continued collaboration we will achieve efficiency through harmonizing our focus and efforts. Before taking on any new effort – or restarting a current program – takes the time to review what others are doing. You may find some new ideas or an efficient and willing partner. FFI
-  Spink, J, and Moyer, DC (Under Review). The Role of the Public Private Partnership in Food Fraud Prevention, [Submitted April 24, 2016]
-  Spink, J, Rip, M, and Moyer, DC, (2016). New Perspective for Addressing Public Health Threat of Counterfeit Medicines: A Review of the Nigerian Combating Counterfeiting and Sub-Standard Medicines Initiatives, Journal of Forensic Science & Criminology, Volume 4, Number 2, Page 1-13. (ISI NA; SCJ Pending)
-  Spink, J, Moyer, DC, Fortin, NA, Wu, Y, & Yang, J. (IN PRESS) Food Fraud Prevention, Policy, Strategy, and Decision-Making with a Recommendation for a Government Agency, CHIMIA International Journal for Chemistry, Volume 00, Number 00, Page 00-00. (ISI NA; JCR Impact Factor 1.349) [Invited, Accepted Minor Revisions, January 2016, In Press April 2016]
-  2015/12 Spink, J, Moyer, DC, & Speier-Pero, C. (IN PRESS). Introducing the Food Fraud Initial Screening Model (FFIS), Food Control (ISI: 2.806, SCJ 1.256), #16/123 in Food Science and Technology) [Accepted March 10, 2016]