Remembering John Barnett on World Whistleblower Day !

Today, June 23rd, is World Whistleblower Day ! Let's take a moment to remember John Barnett, the Boeing whistleblower who tragically took his own life. His farewell letter serves as a warning to all employees who consider exposing illegal or unethical practices of their employer.

Even in countries with protective laws for whistleblowers, the sad reality is that not all whistleblowers are listened to or protected. This issue is not limited to a specific country, but rather depends on the company or powerful institution being challenged by the whistleblower.

My recent experience with the French authorities sheds light on the functionality of the whistleblowing law, which has been in effect since 2016.

What follows is the translation of my letter to the French authorities (Defenseur des Droits) regarding their response after a year of waiting to my reports on Nestlé's whistleblowing system. This explains why Nestlé Waters staff did not report Nestlé's fraud regarding its mineral waters."

The bottom line is that regardless the promises that they make to you, do not blow the whistle! Do not count on any help either !

Dear Madam,

Your letter of May 23, 2024 (Ref : 24-001958 / EXP) received my full attention. The handling of my alerts and, in particular, your letter, received after more than a year's delay, testify to a certain lack of discernment in considering and analyzing the facts. Could it be a lack of willingness or competence to appreciate the issues at stake?

The arguments put forward for not following up on my report on Nestlé's failings are varied and deserve to be debated. That's why I'm taking the liberty of replying to you with an open letter.

As a reminder, on April 28, 2023, after consultation with the Maison des Lanceurs d'Alerte, I sent a letter to the French Agency for Food, Environmental and Occupational Health & Safety (Agence Nationale de Sécurité Sanitaire de l'Alimentation, de l'Environnement et du Travail, ANSES), pointing out the malfunctioning of Nestlé's whistleblowing system and the violation of the whistleblowing law. A violation which I personally witnessed as Nestlé's Assistant Vice President in charge of food safety for 10 years, and, after more than 13 years of legal battles, a Swiss court recognized my allegations as accurate.

Surprisingly, my letter was passed from one authority to another - four in all - for a whole year, only to be returned to you, despite your having indicated eight months ago that it was not within your remit to respond. It would seem that, despite the years that have passed since the whistleblowing law was enacted, we still don't know which authority is competent in France to deal with alerts concerning food safety, or the whistleblowing system itself.

We can't ignore the fact that I've been trying to raise with a higher authority the safety problems I've observed in Nestlé's food safety management since 2011.

After presenting the facts before a court in Switzerland in 2011, certain elements relating to France were published in the newspaper "Le Monde" (May 16, 2012). Surprisingly, this aroused no interest on the part of the French authorities, while I, for my action, was the subject of a court complaint for breach of professional secrecy.

Then after the scandalous answers given in court by Nestlé executives, my certainty of the existence of dysfunctions in food safety management was confirmed. This led me to write to the French Ministry of Health (September 30, 2016), then to report again to French MPs and finally to the National Commission for Professional Ethics and Alerts in Public Health and the Environment (French acronym: cnDAspe) (September 17, 2020). All my efforts to draw the attention of the French authorities have been in vain. My attempt to alert the European Commission (December 10, 2014) was also unsuccessful.

Against this backdrop, in January 2023, I won an unprecedented legal battle against Nestlé in the Swiss courts. I proved my allegations, namely the malfunctioning of Nestlé's food safety management system and alert system. The court recognized that Nestlé’s management had failed to act on my alerts and my request for a food safety audit. That I had been harassed in an underhand, intensive and prolonged manner, and that the belated harassment investigation constituted an act of harassment in itself, since it was fictitious.

To illustrate these points, I'd like to quote a dialogue that took place in court concerning a product destined for the French market. It shows the ethics of the person Nestlé's management had chosen as Global Quality Director!

The judge had asked Quality Director Roland Stalder why he insisted on marketing a product in France that all the scientists in the Quality Department at headquarters considered to be dangerous. He replied that he didn't care about science or what scientists thought, and that he derived his information from the "Larousse gastronomique" dictionary.

Before joining Nestlé's Swiss headquarters in 2006, he had been Quality Director at Nestlé France until 2003, and then Director of the Product Technology Center in the infant nutrition sector. He had been the cause of a number of problems, including letting eight-month-old babies choke on particularly hard cookies in France. Nevertheless, he was promoted and supported despite other violations.

Furthermore, not only the court's judgment itself, but also the various pieces of evidence I submitted to the court are indicative of the violation of European Commission Regulation (EU) 2021/382 (Chapter XIa) on Food Safety Culture (that is, organizational culture in the field of food safety).

Failures or breaches of the food safety management system can occur in any company, and the role of the whistleblowing system is precisely to remedy these situations. On the other hand, violation of the whistleblowing system, i.e., failure to act on alerts, particularly those from the Food Safety Manager, and harassment of that person, is no longer an ordinary malfunction. It is the symptom of a corrupt management and corporate culture. Therein lies the importance of the evidence I am providing through my legal battle, over and above the various sporadic problems I have reported in the management of food safety at Nestlé.

Of course, not every problem necessarily leads to an incident, because fortunately we have a sound food safety management system, in whose implementation I was personally involved. However, with an unhealthy corporate culture and an ad hoc whistleblowing system, the public interest is at risk.

In what follows, I'd like to respond to the various arguments you put forward to justify a lack of action.

Insufficient documentation. In your letter, you say that I put forward facts as if they were my personal viewpoints, allegations. You even use the term "according to you"! However, the facts I have reported regarding the violation of the internal reporting system are based on a court ruling in Switzerland. A ruling for which I fought for years to provide proof of my assertions. Your letter makes no mention at all of this ruling, which constitutes irrefutable evidence of the facts reported. Just as there is no mention of the public statements made by the Nestlé management. According to its statements to the newspaper "Le Temps" (January 31, 2023), as you can see for yourself, Nestlé refuses to acknowledge having acted wrongly in any way whatsoever.

For more than a year, as my letter circulated from one authority to another, no effort was made on the part of the French authorities to request further information. Or to interview me to find out more about the background to this battle for food safety management and the violations I had observed.

As my position as Food Safety manager required, for years I had tried to remedy the problems internally. But faced with the Nestlé management's refusal to deal with the problems, all my hopes were pinned on support from the authorities. To my great disappointment, I discovered that the authorities didn't want to know about the difficulties faced by powerless employees - at whatever level - when it comes to guaranteeing product safety. What power do we give to companies when they have the leeway to do whatever they want, even to break the law? Isn't this sad and tragic for consumers and employees alike?

If you think the irrefutable elements and material evidence I have presented are "insufficiently documented", couldn't my testimony on my experience at Nestlé have been useful to the food regulatory authorities? After all, I worked for ten years at Nestlé as head of food safety management, and as many years in the same position as an expert at the World Health Organization!

Here, it is worth recalling Article 5 of Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019 on the protection of persons who report breaches of Union law. It defines "information on violations" as follows:

‘information on breaches’ means information, including reasonable suspicions, about actual or potential breaches, which occurred or are very likely to occur in the organisation in which the reporting person works or has worked or in another organisation with which the reporting person is or was in contact through his or her work, and about attempts to conceal such breaches;

However, I have provided you with indisputable evidence of actual violations as well as of the risk of potential violations, given the fact that the Nestlé management still does not acknowledge the fallacious way in which it has handled my complaints and that serious acts of negligence have taken place.

Nevertheless, in cases where a company's organizational culture does not support transparency, and moreover, the company harasses employees who have "different opinions", as has been my experience, it is obvious that the whistleblower cannot have all the evidence required. It is therefore up to the authorities to investigate. Investigations into the Caudry plant in the context of the enterohaemorrhagic Escherichia coli outbreak linked to Nestlé's Buitoni pizzas could have provided you with further evidence. They could have shown that, even in 2022, employee complaints had gone unheeded.

In Article 11. 3, the EU Directive also states that even if, after due consideration, Member States decide not to act on an alert, " this shall not affect other obligations or other applicable procedures to address the reported breach".

In this context, the least that could have been done would have been to check and confirm that corrective measures had been taken, and that Nestlé's governance and whistleblowing system was working. Normally, such a check should be carried out as part of corporate surveillance. This is all the more important when an offence has been committed. Why not take a look at how Nestlé's management handled my alerts? Does it recognize its fault? And why not ask them to provide evidence that my complaints have been properly followed up and investigated? Another possible measure, normally recommended in the event of a breach, is to increase surveillance of the company in question.

Territorial aspect. In your letter, you mention the limits of the law for an intervention in Switzerland. In a globalized world, governed by international trade in products and services, and dominated by multinationals, invoking territorial limits in the event of an alert is not a valid argument. It's a very narrow vision of the contemporary world, and is all the more surprising given the many international crises we have witnessed in the food sector. Such as the bovine spongiform encephalopathy (BSE) crisis, the dioxin crisis or the horsemeat scandal, and the fact that many food outbreaks are due to imported products.

It's important to know that the conflicts I had with the Nestlé management at the head office in Switzerland were partly linked to the fact that I had spoken out about the risks to which French consumers were exposed by the management of Nestlé France's Quality Director. It was as a result of these conflicts that I lost my career and my health.

It's also worth noting that it's the parent company in Switzerland that sets company policy, issues instructions and makes critical decisions, such as whether or not to withdraw products from the market. If there is corruption at this level, there will inevitably be implications for the subsidiaries, including those in France.

The territorial issue in the event of an alert is one that I have tried to bring to the attention of the authorities and legislators in Europe and France on several occasions. The problem raised is that of professionals working at the headquarters of a multinational company who are confronted with failures that potentially have an international impact. But there is no international authority to turn to. And when we turn to a national authority, we come up against the territorial limits of the law. In other words, food safety management at multinationals’ headquarters is outside of any regulatory control and is not subject to any jurisdiction. The ethics of head office staff are not questioned, even though they have authority and power over the whole company at international level. Evidence of this is the fact that, following the numerous incidents and crises I experienced at Nestlé, no authority asked me to account for our management of food safety.

Systemic failure. This point in your letter also surprises me. Do the violations reported by whistleblowers necessarily have to be systemic for the authorities to take action?

The point I tried to make in my letter is that by failing to recognize its wrongdoing, the Nestlé management is itself signaling that such management is its modus operandi, in line with its organizational culture. So, even if my experience goes back to the past, as you write, as long as there is no recognition of wrongdoing, the case remains open, because there is a risk that the same pattern might be repeated in the future. So, we are faced with potential violations (reference to the European Directive mentioned above). In other words, the term "systemic" refers to a system which, by design, would only react on an ad hoc basis, when it serves the interests of the company, or certain people within the company, and not those of the public.

What's the point of whistleblowing if the culprits don't admit their wrongdoing, and moreover enjoy impunity? Perhaps my unsuccessful experiment has already had an effect internally, silencing other potential whistleblowers?

In conclusion, the handling of this case is a warning to all employees not to blow the whistle, especially when it comes to large corporations, as their actions risk destroying their lives without benefiting society. Yet it is the dysfunctions of large corporations that will do the most damage.

My ethics and my professional duty to public health and humanity have guided my actions and my commitment. My experience, when brought to the attention of the French authorities, gave me hope that it would lead to better management of food safety.

But as the saying goes: "You can take a horse to water, but you can't force him to drink", I have to face the facts: my action has been fruitless, despite my best efforts.

Finally, I'd like to point out that one of the essential roles of the state is to protect public health and interests, not just to legislate. Legislation is a means, not an end in itself. Therefore, all possible means must be employed to protect consumers.

Ultimately, what is determining for consumer confidence in the safety of food products, if it is not control by the authorities?

A quote from Edmund Burke sums up this matter. "The only thing that allows evil to triumph is the inaction of good men."

Regretting that you and the various authorities involved have not paid sufficient attention to my experience and expertise, I remain

??????????????????????????????????????????????????????????????????????? ??? Yours truly

Yasmine Motarjemi

Former Senior Scientist, World Health Organization

Former Corporate Food Safety Manager, Nestlé

Former Assistant Vice President, Nestlé

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CC:

Ms Stella Kyriakides. European Commissioner for Health and Food Safety.

Mr. Benoit Vallet. Director General, Agence nationale de Sécurité sanitaire de l'Alimentation, de l'environnement et du Travail (ANSES).