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Food Safety and Technology Jan. 2009 FST-32 Good Food Safety Practices: Managing Risks to Reduce or Avoid Legal Liability Elizabeth Haws Connally, Esq.1 (This publication was prepared for the CTAHR project, Enhancing On-Farm Performance in Food Safety to Market the Highest Quality Produce) Consumers today demand that the food they eat be safe and free from harmful contaminants that cause illness. They require growers, shippers, wholesalers, retailers, and restaurants to take appropriate actions to ensure a safe food supply. Consumers have also demon-strated that they will hold all these “food suppliers”—in-deed, all segments of the food supply chain—accountable for foodborne illnesses. Aside from their potentially devastating public health effects, these illnesses are costly to the consumer and the food industry. For the food industry, the impact may last beyond the resolution of the food illness outbreak. Once consumer confidence is lost, it may take a long time before consumers return to buying the product. This publication reviews the potential liabilities that the food industry (“from farm to table”) faces from the increasing spread of foodborne illnesses. In addition, it addresses ways to manage these risks through using the Good Food Safety Practices and purchasing insurance. Foodborne illness: origins and impacts The most harmful of potential contaminants that can cause foodborne illness are disease-causing microbes (pathogens) of human or animal origin (these pathogens are commonly called “germs”). Food (USDA) Economic Research Service estimates that more than 73,000 cases of illness caused by E. coli strain O157 occur annually, resulting in health-related costs of more than $450 million.2 E. coli is just one of several pathogens that have contaminated food and caused illnesses.3 Recent food scares such as the one involving spinach contaminated with E. coli O157:H74 have heightened interest in food safety and awareness of food industry vulnerabilities. In September 2006, the Centers for Dis-ease Control and Prevention informed the U.S. Food and Drug Administration (FDA) that it linked the outbreak of E. coli O157:H7 to contaminated prepackaged, fresh-cut spinach packed for Dole Foods by Natural Selection Foods LLC, a California specialty lettuce processing company.5 This E. coli outbreak spread to 26 states and resulted in 204 confirmed illnesses and three deaths.6 This one incident caused economic losses in California estimated at $37–74 million.7 In addition, everyone in the spinach supply chain was exposed to and/or embroiled in litigation for more than two years. The total amounts paid out in legal settlements are not known.Lawsuits in the food industry are on the rise, as attor-neys are becoming more successful in proving foodborne illness causation, thanks to better science. In February 2008, one law firm in Seattle, Wash-suppliers and handlers must do all they can to reduce the chance of contaminating food products with pathogens.One pathogen, Escherichia coli,commonly referred to as E. coli, is currently the leading cause of food-borne illness in the United States. The U.S. Department of Agriculture This publication is intended for edu-cational and informational purposes only. It is designed to provide only general information regarding the subject matters covered. It is not a substitute for legal advice or other professional services. Due to the rapidly changing nature of the law, information contained in this publica-tion may become outdated. ington claimed to be handling more than 1,000 active foodborne illness cases, originating in all 50 states.8 Many lawsuits settle before trial, but not without significant expense.In 2003, more than 650 people were sickened and four died from hepatitis A, contracted from Mexi-can green onions served at the Chi-Published by the College of Tropical Agriculture and Human Resources (CTAHR) and issued in furtherance of Cooperative Extension work, Acts of May 8 and June 30, 1914, in coopera-tion with the U.S. Department of Agriculture. Andrew G. Hashimoto, Director/Dean, Cooperative Extension Service/CTAHR, University of Hawai‘i at Mānoa, Honolulu, Hawai‘i 96822. An equal opportunity/affirmative action institution providing programs and services to the people of Hawai‘i without regard to race, sex, age, religion, color, national origin, ancestry, dis-ability, marital status, arrest and court record, sexual orientation, or status as a covered veteran. CTAHR publications can be found on the Web site <http://www.ctahr.hawaii.edu/freepubs>.UH–CTAHR Good Food Safety Practices: FST-32 — Jan. 2009 Chi’s Mexican restaurant near Pittsburg, Pennsylvania.9 FDA attributed the outbreak to poor sanitation. This was the largest single-source epidemic of hepatitis A in U.S. history.10 The total compensation paid by Chi-Chi’s was $50 million.11 Foodborne illness litigation A person affected by a foodborne illness may attempt to obtain financial compensation for his or her illness by pursuing legal action against the firms that produce, process, distribute, cook, or sell the food product that allegedly caused the illness.12 In order to prevail in foodborne illness litigation, people filing the lawsuit, (plaintiffs) must prove by a preponderance of the evidence that the food supplier (defendants) committed wrongful acts that caused harm to the plaintiffs. Potential causes of legal action A plaintiff in these lawsuits will identify specific claims (“causes of action”) and must cite facts that support these claims and a demand for damages. There are three common causes of action in foodborne illness lawsuits: product liability, breach of express or implied warranty, and negligence. These, however, are not the only causes of actions that a plaintiff may allege. All food suppliers are subject to these legal claims.


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