USDA to Study Distillers Grains
We recently published an email alert concerning studies allegedly linking distillers grains and E. coli O157:H7. The Des Moines Register ran a recent article on the subject. The article mentions the ongoing study by the USDA. The USDA study “will collect hide and feces samples from 300 control and 300 cattle fed diets supplemented with distillers grains. Cattle will be sampled every 28 days for ten months. These samples will be tested for the prevalence and level of E. coli O157:H7.”
Results from this study will not be released until at least the end of 2008 and more likely in 2009. However, the lack of definitive information may not insulate the biofuels industry from claims by plaintiffs relying on the results of the study. Strict liability, not negligence, will be the standard of liability. What defendant industries knew and when they knew it may not be relevant. In many states, the statute of limitations gives plaintiffs three or more years to bring suit. As we advised in our original alert, biofuels manufacturers should review both their vendor contracts and their insurance coverage now, in order to mitigate and shift risk against future claims of liability.
Criticizing Food Sellers for Being Too Cautious About Food Safety?
I was surprised to see criticism in the blogosphere about recent efforts by Trader Joe’s and Wegmans supermarkets to restrict certain items of Chinese-grown produce (e.g., spinach and garlic) from their shelves.
The critique seems to be that because some U.S.-grown produce has been linked to recent E. coli outbreaks, U.S. retailers lack standing to restrict foreign-grown products.
The critique of retailers restricting Chinese imports demonstrates a lack of understanding about the efforts that many, if not most, major U.S. food sellers now undergo to ensure food safety from farm to table. In recent years, the nation’s largest supermarket and restaurant chains have become very involved in the safety of their supply chain.
The industry now insists on the highest standards of safety in the growing and harvesting of produce. Many restaurants and retailers audit their growers’ food safety practices. Every item of produce is traceable to its source. If a food seller cannot maintain this kind of control over its supply chain or ensure its safety, the seller will not sell the product.
Despite the often Herculean efforts by the food industry, food-borne pathogen outbreaks are on the rise. The fact that the highest standards of food safety are not always enough to prevent a food-borne pathogen does not mean we should let our guard down. Trader Joe’s and Wegmans are to be lauded, not criticized, for being cautious about the source of their produce.
Loyalty Cards and Product Recalls
Last week, a supermarket chain, Wegmans, learned that an employee working in the produce department contracted Hepatitis A. Like many supermarket chains, Wegmans, based in Rochester, New York, maintains a customer loyalty card system. According to the Buffalo News, , “the store plans an outreach to its customers they know purchased potentially affected produce by using Shoppers Club data to contact them via automated telephone calls.”
Loyalty cards were not designed to assist grocers in providing recall and food safety information. Many companies, in fact, face hardware and software problems in using their loyalty card databases to notify customers about issues with products purchased with the card. Many grocers do not require complete or accurate contact information. Privacy concerns are also a factor. A grocer does not know when it contacts a customer whether it is speaking to the customer or to someone else in the household. It is not hard to imagine a situation in which a household member does not want purchases (e.g., birth control, alcohol, or tobacco) or health conditions known to others in the household.
On the other hand, some believe that customers expect grocers to use their loyalty card databases for just this purpose. Traditional means of recall notice--press releases, signage in the stores, etc.--may not be as rapid as a phone call or email. Timing can make the difference between recalled food being consumed or not.
No matter whether grocers follow Wegmans’ policy of personal notification, a good business practice (and litigation avoidance tactic) may be for a grocer to disclose clearly to customers its policy about using the loyalty card information to provide notice of product safety issues. For grocers who use the database to phone or email consumers, a clear policy will avoid the golden rule that “no good deed goes unpunished.” For grocers for whom personal recall or safety notices are impractical or constitute privacy violations, a clear policy will create clear expectations and may mitigate against litigation.
Why The Fuss About Food Liability?
As we planned the launch of this blog, many asked, “Why the fuss now about food liability?” Food poisoning has always been a part of human history. Food liability litigation has been around for a long time. Products liability law traces its roots to food cases. The answer has several parts.
Continue Reading...
California Farm-Raised Salmon Cases - Preemption
The California Supreme Court last week issued an opinion that federal law does not preempt complaints brought under state deceptive-marketing laws against grocery stores for allegedly selling artificially colored salmon.
The trial court found that claims were preempted by section 337(a) of title 21 of the U.S. Code, a provision of the Federal Food, Drug, and Cosmetic Act (“FDCA”) (21 U.S.C.
§ 301, et seq.).The Court of Appeal affirmed the resulting judgment of dismissal. The California Supreme Court concluded “that section 337(a) does not preempt the action as plaintiffs do not seek to ‘enforce[], or to restrain violations’ of, the FDCA. (§ 337(a).) Rather, plaintiffs’ claims for deceptive marketing of food products are predicated on state laws establishing independent state disclosure requirements 'identical to' the disclosure requirements imposed by the FDCA, something Congress explicitly approved in section 343-1. (§ 343-1(a)(3).)”
Preemption of Organic Foods Claims
We recently published a client alert about the claims being asserted against retailers for selling as “organic” milk that some believe may not be organic, as defined under the Organic Foods Production Act of 1990 A prime issue in this litigation is preemption. Claims are asserted not under federal law, but under state consumer protection statutes.
