Criminal Defence for Food Safety Crimes

Food crimes punish conduct that endangers consumer health through the production, distribution or sale of harmful or adulterated food. Regulated in Articles 363-367 of the Criminal Code, within offenses against public health, they protect food safety as a collective legal interest.

Legal Framework

Food crimes are regulated in Articles 363-367 of the Criminal Code, within the offences against public health, and protect food safety as a collective legal interest. A defining feature is that they are abstract-danger offences: no actual harm to a consumer's health is required, only that the conduct be capable of causing it.

Main Criminal Conducts (Art. 363 CP)

Article 363 CP punishes with imprisonment of 1 to 4 years, fine and disqualification producers, distributors and traders who:

• Offer food products on the market omitting or altering established requirements regarding expiry or composition.
• Manufacture or sell beverages or food for public consumption that are harmful to health.
• Traffic in spoiled goods.
• Produce items whose use is not authorized and is harmful to health, or trade in them.
• Conceal or remove items intended for destruction or disinfection in order to trade them.

Food Adulteration (Art. 365 CP)

Article 365 CP punishes with imprisonment of 2 to 6 years anyone who adulterates with unauthorized additives or agents capable of causing harm to health, food, substances or beverages destined for food commerce.

Responsible Parties

Liability runs along the whole food chain: producers, manufacturers, distributors, traders and hospitality workers. Within a company, it falls on those with decision-making power over food safety —the director, the quality manager, the head of production— rather than on every employee. In addition, the company itself, as a legal person, may be convicted (Art. 366 CP), with sanctions including fines, the suspension of activities, the closure of the establishment and disqualification from obtaining public subsidies.

Defense Strategies

The main lines are: the absence of harmfulness, demonstrated through expert evidence that the product posed no real risk to consumers —decisive, because mere expiry does not by itself constitute a danger—; regulatory compliance, proving that the company observed its HACCP protocols and the applicable health rules; the mistake of fact, especially for distributors and retailers unaware of the adulteration; and the challenge to the inspection, scrutinising the sampling, the chain of custody, the laboratory's accreditation and the analytical methodology.

Criminal Consequences

The basic offence (Art. 363 CP) carries prison of 1 to 4 years, a fine of 6 to 12 months and disqualification of 3 to 6 years. Adulteration with unauthorized additives capable of causing harm (Art. 365 CP) rises to 2 to 6 years. The company faces the corporate sanctions of Art. 366 CP, and a conviction entails the civil liability to compensate affected consumers and the mandatory product recall. Given this exposure, legal counsel from the very moment of an unfavourable health inspection is crucial.

Procedural stages and the competent court in food-safety public health offences

Food-safety offences under Articles 363 to 367 of the Criminal Code are tried through the ordinary or the abbreviated procedure depending on the penalty. The investigation falls to the Investigating Court (Juzgado de Instrucción) of the place where the offence was committed, which conducts the preliminary stage: collection of samples, expert reports, statements from the person responsible for the business or premises and, where relevant, the health authority's administrative action. Once the investigation closes, the case proceeds to the oral trial. Early defence work at this stage can challenge the sampling chain, request counter-expert evidence and pin down who actually bore the duty of control over the product.

Trial jurisdiction is allocated by the abstract penalty. The Criminal Court (Juzgado de lo Penal) hears offences punishable by up to five years' imprisonment, while the Provincial Court (Audiencia Provincial) tries those above that threshold. One jurisdictional point deserves emphasis: the National Court (Audiencia Nacional) does not intervene in ordinary food-safety offences. It only comes into play, under Article 65.1.d of the Organic Law of the Judiciary, in drug trafficking or other conduct committed by gangs or organisations with effects in more than one Provincial Court area or of international scope, situations unrelated to food safety but whose jurisdiction should not be denied where those circumstances are present.

Expert evidence, sampling and chain of custody in food adulteration

In these offences the decisive evidence is almost always technical. The analysis of the product must establish which additive, agent or alteration is present, in what concentration, and whether it is harmful to health in the terms required by Articles 363 and 364 of the Criminal Code. Sampling must be carried out with safeguards: batch identification, seals, a reserved adjudicating sample kept for a possible second analysis, and documentary traceability of each custodian. A break in that chain — poorly preserved samples, taken without adversarial guarantees or without reserving the third portion — opens the way to nullity or to discounting the evidentiary weight of the official report.

The defence may request an independent counter-expert report on the product's actual composition, dispute the analytical method used and require the expert to appear at trial for cross-examination. Evidence from the entry into homes, warehouses or premises is equally relevant: any search or technological investigation measure must respect the inviolability of the home protected by Article 18 of the Constitution and the requirements of Articles 588 bis et seq. of the Criminal Procedure Act. Evidence obtained without sufficient judicial cover may be excluded from the proceedings.

The harmfulness element and the line between administrative breach and crime

Not every food irregularity is a crime. The administrative penalty regime for food safety punishes formal breaches — labelling, expiry dates, hygiene conditions — that have not generated a criminally relevant risk to consumers' health. The criminal offence requires something more: under Article 363 of the Criminal Code, offering food products on the market with omission or alteration of expiry or composition requirements so as to endanger health; under Article 364, adulterating with unauthorised additives or other harmful agents; and under Article 365, poisoning or adulterating drinking water or foodstuffs.

The dividing line is therefore the conduct's real capacity to cause harm and the seriousness of the danger created. An effective defence works precisely on that boundary: showing that the defect was merely formal, that the product never reached the market, that the concentration lacked harmful capacity, or that the matter was already sanctioned through administrative channels, which triggers the prohibition on double punishment under the non bis in idem principle. The distinction between intent and negligence is equally central, since Article 367 reserves more lenient treatment for gross negligence as opposed to deliberate conduct.

Limitation, corporate liability and plea agreements

Limitation is governed by Article 131 of the Criminal Code according to the offence's maximum penalty; it is worth recalling that the three-year band no longer exists. Less serious food offences, carrying penalties not exceeding five years, become time-barred after five years; the more severe forms, with higher penalty ranges, may reach ten-year periods. The clock starts when the conduct or the danger ceases, which in cases of prolonged marketing or of products withdrawn late can shift the starting point considerably. Verifying limitation is one of the first checks in any defence.

Alongside the individual, the company may face criminal liability under Article 31 bis of the Criminal Code where the offence is committed for its benefit through failures in its control model; a suitable compliance programme and the professional disqualification at stake call for a joined-up strategy. Where the evidence is strong, a plea agreement (conformidad) allows the penalty to be negotiated with the prosecution and reduced, avoiding trial. This route demands a rigorous assessment of the incriminating force of the expert report and the lawfulness of how it was obtained before deciding whether it serves the client's interests.