Onus of responsibility: the changing responsible corporate officer doctrine

The responsible corporate officer ("RCO") doctrine permits convictions of corporate officers for violations of the Federal Food, Drug, and Cosmetic Act ("FDCA"), even in instances in which the corporate officer was not personally involved and lacked knowledge of the wrongdoing. Prosecutors have seldom prosecuted RCO FDCA cases since the doctrine was first described in 1943, but recent indications point to an imminent revival. Cases and statements from government officials indicate that this second wave of the RCO doctrine may sweep more broadly than did the first. For example, prosecutors appear ready to employ the RCO doctrine in strict liability cases, even though most past RCO FDCA cases involved knowledge on the part of the corporate officer. Moreover, the current environment promises stiffer penalties, less centralized case selection, and fewer jury trials than did the era in which the RCO doctrine was established. This article concludes with a call for the Department of Justice to issue guidelines for RCO prosecutions to ensure that this most unusual form of criminal liability is imposed fairly and consistently.