Q&A: Recalls & Liability

Freshway Foods recently announced a massive lettuce recall due to contamination by a rare strain of E. coli bacteria. This recall, once again, has brought consumer concerns about food safety to the forefront and has exposed the food industry to increased media scrutiny.

Freshway Foods recently announced a massive lettuce recall due to contamination by a rare strain of E. coli bacteria. This recall, once again, has brought consumer concerns about food safety to the forefront and has exposed the food industry to increased media scrutiny. In light of these developments, Food Manufacturing sat down with John E. Hall, an attorney who represents food companies in cases involving foodborne illnesses to discuss what food manufacturers can do to mitigate both the risk of food contamination and the legal liability they may face after a recall.

Q: How important is it for food manufacturers to implement track-and-trace systems? Can this help avoid or mitigate litigation?

A: Everybody in the chain — from the farm to the fork — should have recall procedures in place that they can implement as soon as they get any notice that there might be a contaminated food source that passed through their plant, farm or restaurant.

Q: Has increased media scrutiny on the food industry had any impact on the settlement figures that tend to result from contamination-related lawsuits?

A: Absolutely. The plaintiff’s bar is very aware of foodborne illness cases, which have a tendency to have a larger value, especially if there are children involved or if there’s the risk for serious injury or death, like there is with E. coli, for instance. Plantiffs’ attorneys follow the FDA’s website — which is available to everybody — for potential incidents.

Q: What are some potential outcomes of the most recent lettuce recall? Who could potentially be held liable?

A: Everybody in the chain of distribution is potentially liable. In other words, a plaintiff could look to anybody in the distribution chain that they want to. As an example, if the farm would not have assets to satisfy a plaintiff, he could go to a distributor, or he could go to a grocery store, or he could go to the restaurant where he picked up the romaine off the salad bar.

Q: What steps should food manufacturers take to protect themselves from litigation related to food contamination?

A: Most importantly, they have to have GMPs — good manufacturing practices, which are not required by the FDA, but most companies that are distributing food products today in the United States would have those programs in place.

Q: If contamination has occurred and a recall has been put in place, what is the best way for food producers to launch an investigation into the source of food contamination?

A: What companies like Freshway, for instance, should have in place is a recall team, and that team should consist of an insurance carrier to notify, a lawyer, possibly an epidemiologist, a quality control professional and may also consist of a medical doctor. These people would act as a team in conducting the recall and evaluating the data.

Q: In cases like Freshway Foods’ recent lettuce recall, how much do food manufacturers stand to benefit from quick discovery of the contamination and announcement of the recall?

A: If they have proper trace-back procedures in place — recall capabilities — then they can get it off the shelf as quickly as possible and not be surprised by having it sit on somebody’s shelf when it has the potential to contain — in this case — E. coli. The faster the better.

Reach John E. Hall at jhall@eckertseamans.com.

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