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.