FDA Tackles Terrorism and Adulteration

During a crisis. Unsure whether or not to disclose a problem or an investigation? Talk to your lawyer, then your public relations team. For public companies, the Security and Exchange Commission requires you to “disclose major events that shareholders should know about.” Whether the event in question rises to that level depends on the severity and size of the public company. For private companies, there are no clear rules beyond a requirement to disclose an imminent and substantial endangerment to the public.

From a brand and reputation perspective, it is best to disclose early and often. Consumers need and want to be reassured. When there is a threat to food safety, they care about one thing: How does it affect them. Failure to inform the public could lead to lawsuits being filed by plaintiffs’ lawyers looking to make a buck before the facts are known. Once a suit is filed, you have been damaged regardless of the merit of the allegations. As the bad publicity increases, the risk of additional lawsuits rises and you have to pay your own lawyers to defend the claims.

What do you need to tell the public? Before you say anything, you first must know what you want to achieve. Then you can reverse-engineer your strategy and figure out how to get there.

The basics: How did it happen? What are you doing to fix it? What does this mean for them? Each audience has different concerns—consumers, vendors, investors, and the media. But your messaging must be consistent. If there has been illness or loss of life, show empathy. If you are unsure of an answer, the best thing you can say is, “Let me check on that, and I’ll get back to you.” That gives you time to craft a well-thought-out response and make sure you have your facts straight. As a rule of thumb, you only need to share the most necessary information. Anything extra (or unplanned or inaccurate) leaves you vulnerable to follow-up questions that you may not want (or be prepared) to answer. This may increase your legal risk.

After the immediate crisis. The hardest part is behind you. The immediate threat is over, and you have figured out what happened. Now, how do you move forward?

You control the story, by either stopping the story or making sure that the audiences who are most important to you quickly hear what happened, what you have done to correct the problem, and the steps you are taking to make sure it never happens again.

Make sure you learn from what happened. Even if years go by without another mistake being made, people will remember what happened and wonder whether you really learned. They will view you more harshly if you did not learn anything. Indeed, the law allows subsequent violations to be treated by FDA more severely.

Gillott Bowe is a crisis public relations fixer and president of Gillott Communications LLC. She resolves issues both in and outside the media’s glare. She has been featured in The Wall Street Journal, The Washington Post, NPR, Forbes, and Eater. Reach her at [email protected]. Kaplan is a partner with Tucker Ellis LLP and co-chair of the firm’s Food, Cosmetics, and Nutritional Supplements practice. He advises business on FDA and FTC advertising and labeling compliance and environmental regulatory matters, and defends class action false advertising and unfair competition cases. Reach him at [email protected].