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How to avoid the lawyers coming calling on a food safety issue

It is a Global Food Economy

To Put Things in Perspective in the USMicrobial pathogens in food cause an estimated 48 million cases of human illness annually in the United States125,000 hospitalizedCause up to 3,000 deaths

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Food Production is a Risky Business

Competitive MarketsStockholder Pressures for Increasing Profits over Long-term SafetyLack of Clear RewardFor Marketing and Practicing Food Safety

What we all want to Avoid

Strict Product Liability in the USNegligenceAre you a product seller?Did you act reasonably?Strict LiabilityAre you a manufacturer?Was the product unsafe?Did product cause injury?Punitive Damages/Criminal LiabilityDid you act with conscious disregard of a known safety risk?

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Who is a Manufacturer?A manufacturer is defined as a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer. RCW 7.72.010(2); see also Washburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992)

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The only defense is preventionIt does not matter if you took all reasonable precautionsIf you manufacture a product that makes someone sick you are going to payWishful thinking does not helpIts called STRICT Liability for a Reason

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Ill person

Specimen collection

Pathway of a Foodborne Illness Investigation

Health Care Provider

Organism identified

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Ill person

Organism identified

Specimen collection

Pathway of a Foodborne Illness Investigation

Health Care Provider

Epidemiologic investigation

Public Health Laboratory

If there are more ill persons than expected, an OUTBREAK might be underway.

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Ill person

Organism identified

Specimen collection

Pathway of a Foodborne Illness Investigation

Health Care Provider

Epidemiologic investigation

Public Health Laboratory

Environmental investigation

Product Trace Back

Product Recall

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Litigation as Incentive 20 Years Later

Odwalla

Jack in the Box

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How Are Things are Different Today?

Now a 76 Count Federal IndictmentStewart Parnell, the former owner of Peanut Corp. of AmericaMichael Parnell, who is Stewart Parnells brother and a former supervisorSamuel Lightsey, a onetime plant operatorMary Wilkerson, a former quality-assurance managerDaniel Kilgore, plant managerAllegations Include:Mail FraudWire FraudIntroduction of Adulterated and Misbranded Food into Interstate Commerce with Intent to Defraud or MisleadConspiracy

And, It Does Not Always Require IntentA misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation.Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $250,000 or both.

Chipotle?

Seattle E. coli O157:H7, July 2015 (unreported), five sick people;Simi Valley, Calif. Norovirus, August 2015, 234 people;Minnesota Salmonella Newport, August and September 2015, 64 sick people, source was tomatoes;Nine states E. coli O26, began October 2015 and declared over Feb. 1, 55 sick people, states involved are California, Delaware, Illinois, Kentucky, Maryland, Minnesota, New York, Ohio, Oregon, Pennsylvania and Washington;Boston Norovirus, December 2015, 151 sick people;Three states E. coli O26, began December 2015 declared over Feb. 1, five sick people, states involved are Kansas, Oklahoma and Nebraska.

Even Comedians Like Safe Food

Planning AGAINST Litigation What Is Really ImportantIdentify HazardsHACCPDo you have qualified and committed people?What is the Culture?Involve Vendors and SuppliersDo they really have a plan?Ever visit them?

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Planning AGAINST Litigation Establish RelationshipsThey are your best friends!

Questions

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