Offences Against Food Safety and Public Health (Arts. 363-365 CP)

The safety of what we eat and drink is a collective interest that the State also protects through the criminal law. When a company or a professional in the food chain puts harmful, adulterated or unauthorised products into circulation, they may commit an offence against public health in its food-related form, governed by articles 363 to 367 of the Spanish Criminal Code (CP). As criminal lawyers specialising in food safety crimes, we explain what these provisions punish, the penalties they carry and how companies and responsible individuals in the sector are defended.

What Art. 363 CP Punishes

Article 363 CP penalises producers, distributors or traders who endanger the health of consumers through any of the following conducts:

• Offering food products on the market in breach or alteration of the requirements set out in laws or regulations on expiry or composition.
• Making or selling drinks or foodstuffs intended for public consumption and harmful to health.
• Trafficking in spoiled goods.
• Making products whose use is not authorised and is harmful to health, or trading in them.
• Concealing or removing items intended to be destroyed or disinfected in order to trade in them.

The penalty is imprisonment of one to four years, a fine of six to twelve months and special disqualification from a profession, trade, industry or commerce for three to six years. The protected legal interest is public health understood as a collective interest, not that of a specific consumer.

An Offence of Danger: the Key to the Provision

This is the decisive point for understanding the figure. Food safety crimes are offences of danger: they do not require a poisoning, an injury or a death to occur. What is punished is the endangering of collective health, that is, the product's capacity to be harmful. For that reason the central issue at trial is usually technical: whether or not the food, drink or substance had a real capacity to harm the health of consumers in the conditions in which it was offered.

Important defence consequences flow from this character. If it is shown that the product lacked harmful capacity —because the deviation was harmless, the quantity irrelevant or the risk merely theoretical— the conduct may fall outside the criminal offence and be redirected, where appropriate, to the sphere of administrative sanction in food safety matters, which is independent of the criminal route.

Adulteration with Unauthorised Additives (Art. 364 CP)

Article 364.1 CP punishes, with the same penalties as art. 363, anyone who adulterates with unauthorised additives or other agents capable of causing harm to health the food, substances or drinks intended for the food trade. If the person responsible is the owner or production manager of a food products factory, special disqualification of six to ten years is also imposed.

Paragraph 2 extends the offence to the livestock sphere: administering to animals reared for consumption non-permitted substances that create a risk to human health (or in doses or for purposes that are not authorised), slaughtering or destining for human consumption animals treated with such substances, or releasing meat for consumption without observing the regulatory withdrawal periods. This is the typical channel for cases involving banned hormones, antibiotics or growth promoters in meat production.

Table of Penalties

Conduct	Provision	Penalty
Offering, making, selling or trafficking in harmful or unauthorised food	Art. 363 CP	Imprisonment 1-4 years, fine 6-12 months and special disqualification 3-6 years
Adulterating with unauthorised additives/agents; conducts in livestock for consumption	Art. 364 CP	Penalties of art. 363; disqualification 6-10 years if owner or production manager
Poisoning or adulterating water or food with seriously harmful substances	Art. 365 CP	Imprisonment 2-6 years
Commission through gross negligence	Art. 367 CP	Penalty reduced by one degree from that for the intentional conduct

Who Is Liable: Responsible Individuals and Companies

The circle of possible defendants is broad because the law expressly mentions producers, distributors and traders. In practice the manufacturer, the quality or production manager, the distributor and the retailer or caterer may all be implicated, depending on their position in the chain and their knowledge of the risk.

Alongside individual liability, article 366 CP provides for the criminal liability of the legal person where the offence is committed for its benefit by its representatives or through a lack of due control. The company may face a fine proportionate to the value of the products or to the benefit obtained or that could have been obtained, and the courts may also impose consequences such as the closure of the establishment, the suspension of activities or disqualification from obtaining subsidies and public aid. This is why a serious and effective food safety compliance programme matters both to prevent and to defend.

The Negligent Form (Art. 367 CP)

Not every food safety failure is an intentional offence. Art. 367 CP covers commission through gross negligence, punished with the penalty reduced by one degree. Here the defence boundary is clear: criminally relevant gross negligence —an intense breach of the sector's duties of care— must be separated from a mere administrative breach or an isolated failure that does not reach the threshold of criminal reproach. The difference is decided on the self-control protocols, traceability and the diligence required of the operator.

Lines of Defence

1. Absence of harmful capacity: establishing through technical expert evidence that the product was not apt to endanger health, that the risk was harmless or merely theoretical, or that the substance was within tolerated limits.
2. Causation and attribution: contesting that the risk actually stems from the defendant's conduct rather than from a different link in the chain or an external factor.
3. Health controls and self-control: demonstrating compliance with hazard analysis and critical control point systems, traceability and the operator's food safety protocols.
4. Mistake and absence of intent: especially for distributors and retailers who were unaware of the harmful or adulterated nature of the product, which may exclude intent and redirect the case, where appropriate, to negligence or to criminal atypicality.
5. Challenging the health evidence: questioning the sampling, the chain of custody, the laboratory's accreditation and the analytical methodology underpinning the charge.
6. Distinction from the administrative route: placing the conduct, where appropriate, within the sphere of an administrative food safety infringement, outside criminal reproach.

In this area, the settled case law of the Supreme Court stresses the nature of the offence of danger and the need to establish a real capacity to harm collective health, which leaves a technical margin for defence that should be worked from the outset of the investigation, together with the expert evidence.