FOOD SAFETY MANAGING RISKS TO REDUCE LEGAL LIABLITY

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FOOD SAFETY MANAGING RISKS TO REDUCE LEGAL
LIABLITY

• ELIZABETH HAWS CONNALLY,ESQ.
• Alston Hunt Floyd Ing

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FOODBORNE ILLNESS IS HEADLINE NEWS

• MILLIONS OF CASES A YEAR DEEMED TIP OF THE
  ICEBERG - STAR BULLETIN 2/20/09
• IDENTIFIED AS PRIORITY ISSUE FOR
• OBAMA ADMINISTRATION BEFORE RECENT PEANUT CASES
• LIKELY TO SEE MORE REGULATIONS

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CDC ESTIMATES OF FOODBORNE ILLNESS CASES

• EACH YEAR
• 87 MILLION CASES
• 371,000 HOSPITALIZATIONS
• 5,700 DEATHS
• PEANUT CASES Allegations so far -
• 640 ILL
• 9 DEATHS 44 STATES

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CONSUMERS DEMANDING SAFE FOOD SUPPLY

• CONSUMERS WANT TO HOLD
• ALL FOOD SUPPLIERS ACCOUNTABLE

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FOOD SUPPLIERS NEED TO BE PROACTIVE

• REDUCE CHANCE OF FOODCONTAMINATION
• COMMON PATHOGENS
• E. coli 0157H7
• Hepatitis A
• Salmonella

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LAWSUITS ON THE RISE

• E. coli 0157H7 contaminated prepackaged
  fresh-cut spinach
• 26 states, 204 ill, 3 deaths
• Entire supply chain in lawsuits for over 2yrs
• Hepatitis A green onions
• 650 ill, 4 deaths
• Chi-Chis paid gt 50M
• Salmonella peanuts
• More costly Possible Criminal Charges

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Foodborne Illness Litigation

• Prove by preponderance of the evidence that the
  food supplier committed wrongful acts that caused
  harm
• 3 Potential Causes of Action
• Product Liability
• Breach of Express or Implied Warranty
• Negligence

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Product Liability

• Plaintiff must prove the product was defective
  and unreasonably dangerous when it left food
  suppliers control and the defect was the
  proximate cause of injury
• Entire food chain exposed (i.e. production,
  transfer and handling)
• Includes value added products and production
  process

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Breach of Warranty

• Claim food product does not conform to the
  warranty and non-conformance caused injury

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Negligence

• Negligence per se violated law or deviated from
  food safety and health standards
• Plaintiff must prove 3 elements
• Legal duty to exercise reasonable care
• Failed to perform duty
• Failure to perform duty caused injury
• Food Suppliers must exercise
• DUE DILIGENCE
• REASONABLE CARE

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Negligence

• Food Supplier has duty to use reasonable care
  such as inspecting food to prevent contamination
  or harm to consumer
• Note Inspecting is only one means of exercising
  reasonable care not the only factor.
• Food Supplier may be liable if product contains
  unexpected items peanuts

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Manage Food Safety Risks

• Good Food Safety Practices
• Developed by USDA and FDA
• 4 Tools
• The Guide
• Good Agricultural Practices
• Good Manufacturing Practices
• Hazard Analysis Critical Control Points (HACCP)
• UH CTAHR workshops assist compliance

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Good Food Safety Practices Legal Defense

• Use of Good Food Safety Practices by ENTIRE Food
  Supply Chain
• Minimize chances of foodborne illness
• Provides legal defense
• Even if found liable punitive damages can be
  reduced or avoided
• Show took reasonable care
• Used best technology
• Complied with laws, regulations, guidelines

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Other Ways to Manage Risks

• Use of contracts
• Insurance

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Use Of Contracts

• Can require food supplier adopt and implement
  safe food handling practices
• Can require food supplier purchase sufficient
  insurance coverage to cover buyers risks

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Insurance

• Different types of insurance
• Determine if insurance covers foodborne illness
• Determine if coverage levels sufficient
• Buy enough Inexpensive policy may prove costly
  in the future
• Carefully review policy
• Does it cover your risks?

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Types of Insurance

• Commercial general liability
• Business interruption
• Product Recall
• Coverage for losses because of recall, cost of
  removing product and rebuilding reputation
• Product Liability
• Coverage for claims relating to injury from food
  product

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Food Safety Practices

• Use it as a marketing tool
• Less costly to be proactive than embroiled in
  lawsuits
• Protect your business
• Use Good Food Safety Practices

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Questions?

• Thank YouElizabeth Haws ConnallyAlston Hunt
  Floyd Ing808-524-1800Ehaws_at_AHFI.com