Category: Crisis Management

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Marketing Missive: FDA Issues Warning Letter to Procter and Gamble for Unlawfully Marketing Cold and Flu Medications Containing Vitamin C

By Guest Blogger Tyler Anderson On October 29, 2009, the FDA issued a warning letter to Procter and Gamble notifying the company that its “Vicks DayQuil Plus Vitamin C” and “Vicks NyQuil Plus Vitamin C” are illegally marketed combinations of drug ingredients and a dietary ingredient. Both of the over-the-counter (OTC) medicines, which contain Vitamin … Continue Reading

Some Take-Aways from ACI’s 3rd National Forum on Food-Borne Illness Litigation

American Conference Institute (ACI) recently held its latest conference on food-borne illness litigation. The conference has been a fairly intimate gathering of the nation’s lawyers, insurers and experts involved with food-borne illness litigation. This year, I had the privilege of moderating an in-house counsel “think tank.” The panel was composed of lawyers from a nice … Continue Reading

PCA Investigation: Anatomy of A Recall

FDA has a short video "anatomy of a recall" about the investigation of the Salmonella outbreak and recalls associated with Peanut Corporation of America (PCA). Anyone interested in learning how the federal government  (with the help of Minnesota’s "Team Diarrhea") goes about a food borne illness investigation and recall should take a look.    … Continue Reading

Before the Outbreak, Preapprove Defense Counsel with Insurer

When a food-borne illness outbreak happens, few food companies (especially those whose brand is at stake) want an unfamiliar defense lawyer who has little knowledge about food-borne illness responding to claims asserted against them. Unless a food company maintains a high, self-insured retention or has the lawyer of its choosing preselected, its insurer might appoint … Continue Reading

Tool For Food Companies and Litigators – New Guidelines for Foodborne Disease Outbreak Response

Council to Improve Foodborne Outbreak Response (“CIFOR”) has published new guidelines designed to help local, state and federal agencies to improve their response to outbreaks. I became aware of this (again) through Ricardo Carvajal, who was a reviewer for the guidelines, and his firm’s FDA Law Blog. I agree with Ricardo that while the guidelines … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – What to Do and What to Avoid (part III of III)

By guest blogger Jerry Chiang The following list will help you preserve your liability shield and protect yourself from the liabilities of your corporation or limited liability company (“LLC”). This is not intended to be an exhaustive list but rather an illustrative list of activities that will either preserve one’s liability shield or undermine it. … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – Factors Courts Review for Veil Piercing (part II of III)

By guest blogger Jerry Chiang When courts decide whether to pierce the corporate veil, their analysis is typically a three-step process: (1) whether the defendant-owner exerts sufficient control over the business entity, (2) whether there has been an abuse of corporate form, and (3) whether there is an injury to a third party. There is … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – Introduction (part I of III)

By guest blogger Jerry Chiang In starting any business enterprise, especially in the food industry, incorporating the business as a corporation or limited liability company is as important as having a good product or solid business plan. Incorporation is essential because it shields owners from the liabilities of their business. A lawsuit against the business … Continue Reading

Video From Governor’s Conference on Ensuring Food Safety

University of Nebraska has posted video on its website from the entire three days of the 2009 Governor’s Conference on Ensuring Food Safety. You can view my presentation on Defending Liability in Foodborne Illness Outbreaks. More important, you view the presentations of Dr. Andrew Benson and the other scientists who offer fascinating insights into the … Continue Reading

Assessing Risks of Chemicals in Foods with Limited Scientific Information

An important study was released this month by the Institute of Food Technologists addressing the challenge of responding to food contamination with limited scientific information. Ricardo Carvajal at Hyman, Phelps & McNamara wrote about this on the FDALawBlog last week. You can read the summary by Rosetta L. Newsome here. Ms. Newsome summarizes the three main sections of … Continue Reading

Tort Damages Not the Only Exposure from Food-Borne Illness Outbreaks

For lawyers and insurance adjustors, compartmentalizing food-borne illness claims is easy. They often see their jobs solely as minimizing the tort liability and legal fees. In my experience, attorneys and adjustors often fail to appreciate how outbreaks can affect a client’s (or even a whole industry’s) business going forward. Often, the long-term business losses of a … Continue Reading

Why Are Food-borne Organisms Associated with Beef?

 USDA’s Be Food Safe Twitter Feed circulated its Fact Sheet titled “Beef . . . from Farm to Table.” First published a few years ago, this might be of interest to businesses involved in the sale, marketing, labeling, and/or packaging of beef. The article is a helpful primer on the history of beef, current industry practices, USDA’s … Continue Reading

Sustainability and Consumer Confidence in Food Safety

For food sellers interested in promoting a “sustainable” brand and inspiring food safety confidence in their consumers, meet Food Alliance. Food Alliance “is a nonprofit organization that certifies farms, ranches and food handlers for sustainable agricultural and facility management practices.” It bills itself as “the most comprehensive certification program for sustainably produced food in North … Continue Reading

Melamine in Pet Food and the Limits of the Law

Ken’s blog post about taking the time to figure out what insurance limits are right for you resonated with me as I was reading about the plea agreement in the melamine pet food debacle.  This was the likely last act in a tawdry story of greed and fraud that led to the deaths of thousands … Continue Reading

Improved Surveillance Will Lead to More Food-Borne Illness Claims

We’ve explained previously in this blog why increased surveillance by state and federal agencies will lead to detection of more outbreaks (and, therefore, more legal exposure). Others seem to agree. Law360 published a nice interview with Jim Neale at McGuire Woods, another lawyer experienced in the food liability arena ( a Law360 subscription is needed … Continue Reading

The Perils of Raw Cookie Dough

Nestlé is voluntarily recalling all its refrigerated and frozen chocolate chip cookie dough.  The FDA and CDC warn of the risk of contamination with E. coli O157:H7.  In its release, Nestle says the following:  Nestlé Toll House cookies made from refrigerated and frozen dough are perfectly safe for consumption when prepared according to the instructions on … Continue Reading

Tracking the Food Safety Working Group – More or Less Legal Exposure For Food Sellers?

This week the Obama administration announced the launch of a new website for the recently formed food safety working group. Obama announced the formation of this group in March in the wake of the high-profile food safety issues surrounding PCA peanut products.  This website will assist in tracking the efforts of the working group. As discussed … Continue Reading

FDA Warning to General Mills: Cheerios is a Drug

The U.S. Food and Drug Administration is taking issue with claims that Cheerios cereal can lower cholesterol. In a letter to General Mills, the FDA says that statements made on Cheerios packaging like the claim that the cereal is “clinically proven to help lower cholesterol” make the product a drug under federal law. The agency suggests … Continue Reading

The Pistachio Industry Follows the Peanut Industry

When the peanut butter recall hit, the American Peanut Butter Council issued a list of the items that were not affected by the recall, which was isolated to the products of now-defunct Peanut Corporation of America.  The similar, though less-publicized, pistachio recall has also been isolated to pistachios from a single company, Setton Farms.  And … Continue Reading

Salmonella in a Different Language

When the news of salmonella in something as American as peanut butter needs to get out, spreading the word is fairly routine.  What happens when salmonella rissen is found in white pepper distributed mainly to Chinese and other Asian restaurants on the west coast? Union Internatonal Food Company of Union City, California has voluntarily recalled … Continue Reading

Pork Producers Feel Effects of Swine Flu

Pork producers are feeling the effects of the swine flu as the number of reported cases of the virus increases.  Stock prices for Virginia-based Smithfield Foods, the world’s largest pork processor, and Arkansas-based Tyson Foods, fell 12 percent and 9 percent today, respectively.  The Wall Street Journal reports that the prices of hogs, corn, and … Continue Reading

Michigan Company Announces Frozen Pasta Recall

A Michigan maker of frozen pasta products has issued a recall for products that were distributed to seven states. Canton, Mich.-based Mucci Food Products is recalling an undetermined amount of frozen meat and poultry pasta products because the food was prepared without federal inspection. The products were produced from May 1, 2008 to April 24, 2009 … Continue Reading

Ivar’s Turkey Soup Recall

Ivar Haglund was a Seattle legend.  In these parts, he was known only by his first name, the way you can refer to "Michael" when you’re discussing basketball and people know you mean Michael Jordan.  His food is at Sea-Tac Airport, Safeco Field and Qwest Field.  From 1964 until it was discontinued for this year, he sponsored … Continue Reading

FDA Seeks Input on Intentional Adulteration of Products

The Food and Drug Administration has announced an effort to explore the intentional adulteration of products to increase a producer’s bottom line. So-called “economically motivated adulteration,” or EMA, is the topic of an FDA-sponsored public meeting to be held on May 1 in College Park, Maryland. The meeting follows last year’s concerns about products tainted with … Continue Reading
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