Four years ago, I wrote two posts titled “Mr. Abbott, you will face criminal sanctions.” And a few weeks ago, he said, “Mr. Abbott, you’re going to jail for manufacturing contaminated infant formula.” I was wrong. It’s not about the facts, it’s about the Justice Department’s willingness to do something about them.
The Wall Street Journal reported last night in an article titled “Baby Formula Probe Produces Plenty of Evidence, Then the DOJ Drops the Case,” that the Justice Department has spent years filing a criminal case against Abbott Laboratories at its Sturgis, Michigan, plant. Chronobacter Sakazaki A former FDA official told Congress that five strains of the bug were found in equipment that were present and that the facility was “out of control,” and that four babies who drank Abbott formula became sick and two of them died. According to the Journal, some prosecutors believed they had evidence to bring charges. Some supervisors thought this was a good example. They were conducting a separate investigation and weighing charges against at least one person, including misdemeanor charges under the Food, Drug, and Cosmetic Act and misleading the government.
Then the people at the top closed the door. Instead of charging the cost, Abbott will recoup a portion of the money it makes from selling the formula through federal nutrition programs. Naturally, this is a civil settlement whose terms have not been disclosed. A DOJ spokesperson explained that the department “does not believe in prosecutorial regulation.”
I’d like to sit with that phrase for a moment because I’ve quoted in this article saying the quiet part out loud. When the White House announced its executive order on “hypercriminalization” in May 2025, I said it brought a sigh of relief to CEOs across the country. Because the threat of exposure to crime is what makes people in the food business nervous. I wasn’t cute. I was explaining how deterrence actually works.
I looked at the law when that order came out, and I’ll repeat it here. Section 333(a)(1) of the FDCA is one of the few strict liability offenses in federal law. There is no need for the government to prove guilt. When food is adulterated and travels through interstate commerce, the crime is complete, and officers who have the power to prevent it under the corporate-responsible doctrine are answerable. It’s not a loophole. This is the deal Congress struck in 1938. Because your baby’s life depends on whether the powder is made from clean or dirty plants. I wrote last December that the risk of criminal punishment is still necessary for food poisoning cases. Abbott’s non-indictment is the first major evidence of what happens when you remove risk.
There are two details in the Journal’s report that will surprise any parent. First, even if DOJ had wanted to prosecute, the department that did this work, the Consumer Protection Division, was being disbanded as a cost-cutting measure. This is the same department that fired the executives behind the Peanut Corporation of America salmonella outbreak. Second, one of Abbott’s lawyers, a former deputy attorney general, has reportedly urged the incoming administration to overhaul that very office and strip it of any ability to file criminal charges at all. Read these two sentences together and ask yourself who is writing the rules now.
We’ve seen this movie before, but the credits haven’t rolled yet. Ten people died in Boar’s Head. Listeriageneration. A year and a half later, I’m still asking where the boar’s head investigation went. And the government’s refusal to release the records on the grounds that they were redacted for law enforcement purposes is the biggest confirmation we know that someone with a badge once diligently investigated. “Once” has a lot going on in this sentence.
Yes, Abbott denies the link. The company notes that there have been no cases of unopened distributed formula testing positive and that sequencing of two infant samples available to the CDC did not closely match the plant strains. The FDA still views the findings in Sturgis as a serious concern. Because plants like these are one of the most likely sources of contaminated baby milk. And a civil suit filed by the government, joined by 31 states, alleged that Abbott knowingly failed to meet manufacturing standards and operated a culture of cover-up at Sturgis. Even though I know. concealment. That’s not a statement about the clergy’s mistakes. This is a word that centers around criminal cases that the DOJ has decided not to bring.
I litigate infant formula cases downstream of decisions like these. Our firm currently represents families of babies hospitalized with botulism following ByHeart and Nara formula, and this spring we sent a letter to Secretary Kennedy, the FDA, and the Senate HELP Committee asking Congress to return real teeth to formula safety. Here’s the through line. Once the threat of crime is gone, the only remaining liability is civil checks, and civil checks are merely a cost of doing business. It’s passed on, logged, and forgotten until the next quarter. No one can sleep at night. No one is nervous.
I have tried to avoid political content on this blog. But it’s not political to say that a company with a baby with a plant disease has more to answer for than an accountant. The journal’s headline was accurate. There was a pile of evidence. What is missing is not evidence. It’s the willingness to use it.
We live in interesting times.
