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Defending Liability in Foodborne Illness Outbreaks

I’m asked frequently about the “anatomy of litigation.” I plan to write more in this space on the topic. For now, some may find useful the slides from a presentation I gave recently on “Defending Liability in Foodborne Illness Outbreaks.” I discussed what I see as three prototypes of consumer claims and possible strategies to respond … Continue Reading

Next Generation Sequencing for the Food Industry

More and more, it is becoming true that nothing drives detection and prevention of food-borne illness than technology (and, of course, with advancements in detection come potential increases in exposure to legal liability). No technological advancement may be more significant than Next Generation Sequencing ("Next Gen Sequencing").   I’ve recently had the opportunity to spend time learning about Next Gen Sequencing with Dr. Andrew Benson, a genetic microbiologist at the … Continue Reading

Secretary of Agriculture Emphasizes Safety of U.S. Pork

Secretary of Agriculture Tom Vilsack issued a statement today emphasizing that U.S. pork products are safe and that there is no evidence that U.S. swine have been infected with the swine flu virus. Calling trade restrictions on pork or pork products unnecessary, Vilsack said any such restrictions would be inconsistent with World Organization for Animal … 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

NY Senator to Propose Director of Food Safety Oversight

Senator Charles Schumer (D-NY) is expected to introduce legislation today to strengthen U.S. food safety. Newsday.com is reporting that Sen. Schumer’s bill will call for a director of food safety oversight who would be a senior-level director at the Department of Commerce. The proposed director would focus exclusively on food safety.… 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

Update: Supreme Court Declines Review of Methylmercury Case With Potential Preemption Implications

An update to a case we’ve been following: the U.S. Supreme Court has refused to review a decision by the U.S. Court of Appeals for the Third Circuit involving state-law claims over methylmercury content in canned tuna. The Supreme Court’s order in Tri-Union Seafoods, LLC v. Fellner leaves in place the Third Circuit’s ruling that … Continue Reading

The Uniform Commercial Code and Food Recalls

Article 2 of the Uniform Commercial Code ("UCC") is the source for determining the contract rights between parties, often including completely innocent parties, involved in a product recall. The terms of the parties' contract, often subject to the so-called "battle of the forms" will determine their relative rights. The timing of the recall, whether it occurs before acceptance, during the time when a revocation of acceptance can still be possible, or when the only remaining claims are for breach of warranty, will also have a critical effect on the parties' relative rights.… Continue Reading

Nestle’s Makes the Very Best Peanut Decision

March 19's House hearings on food safety highlighted that Nestle has used its own inspectors in 2002 and 2006, who had found fault with Peanut Corporation of America's plants, while Kellogg's and others had relied on PCA's own inspections by IAB. The question is: why did Nestle's results never see the light of day and can policies be developed that allow such information to reach the public without grinding the food industry to a halt?… Continue Reading

Georgia House Unanimously Passes Food Safety Bill; Kellogg CEO Calls for Food Safety Reforms

Update to today’s earlier post: the Georgia House of Representatives unanimously passed a bill today that would strengthen food safety laws in Georgia. The Georgia House and Senate now will resolve minor differences in the proposed legislation and send a final version to Georgia Gov. Sonny Perdue for his signature. Also today, the AP reports that … Continue Reading

Georgia is One Step Closer to Tough New Food Safety Law

The Georgia House of Representatives today considers proposed legislation to strengthen food safety rules in that state.  Among other things, Senate Bill 80 includes a provision that would require food makers to alert state inspectors within 24 hours if a plant’s internal tests show products are tainted.  Experts say no other state has such a rule. … Continue Reading

California Appeals Court: No Mercury Warnings Required on Canned Tuna

The California Court of Appeal for the First Appellate District has upheld a trial court ruling that canned tuna sold in California need not warn consumers about methylmercury.   In 2004, the State of California sued three tuna companies: Tri-Union Seafoods, LLC; Del Monte Corporation; and Bumble Bee Foods, LLC. The state argued, among other things, … Continue Reading

PCA President Parnell Pleads Fifth Amendment Before House Committee

Stewart Parnell, President and owner of Peanut Corporation of America, appeared before a subcommittee of the House Committee on Oversight and Government Reform today.  The hearing did without his testimony, howevver, as he pleaded the Fifth Amendment.  As we try to follow the breaking news (including, sadly, a ninth death linked to the salmonella in … Continue Reading

PCA Recall – Insurance Lessons for Food Sellers

Bill Marler posted on his blog recently a complaint for declaratory relief filed by an insurer for Peanut Corporation of America (“PCA”). Mr. Marler comments, “Frankly, I read this suit several times and still do not see what the fight is about.” For those who represent commercial insureds in pursuing coverage from their insurers, the suit … Continue Reading

Update on Criminal Risk Management: The Peanut Case

Peanut Corporation of America's way of dealing with positive salmonella tests for its peanut products is a case study in exactly what not to do to avoid criminal prosecution. The FDA's investigation indicates that PCA shipped product before test results came in and then continued to ship after receiving positive tests. This is precisely the kind of actions that are likely to compound, not lessen, the likelihood of criminal prosecution. Indeed, the FBI is now involved in the case, assisting the FDA's Office of Criminal Investigations.… Continue Reading

Avoiding Criminal Prosecution Under The FFDCA

By guest blogger Per Ramfjord The FDA’s recent announcement that it is pursuing a criminal investigation of Peanut Corporation of America, arising out of the Salmonella-driven peanut product recall, is sure to raise concerns with executives in food product companies throughout the country. White House Press Secretary Robert Gibbs’s comment that the Obama administration intends … Continue Reading

Upcoming Hot Topics in Food Law Teleconfernce

UPDATE – This panel will address emerging issues related to the recalls and investigations related to the Peanut Corporation of America. The panel includes persons intimately involved with these issues. Anybody with an interest in the peanut recall should register and tune-in. The American Bar Association is presenting its second Hot Topics in Food Law teleconference on … Continue Reading

Supreme Court Asked to Hear Preemption Case Involving Methylmercury; FDA Issues Draft Documents Regarding Consuming Commercial Fish

By Guest Blogger Bryan Anderson The maker of Chicken of the Sea products has asked the U.S. Supreme Court to grant certiorari in a case we reported on involving preemption of state-law tort claims. In August 2008, the Third Circuit in Fellner v. Tri-Union Seafoods, LLC reversed the district court and held that Food and … Continue Reading
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