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 FOOD
CONTAMINATION

COMMON PATHOGENS
 E. coli 0157:H7
 Hepatitis A
 Salmonella
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LAWSUITS – ON THE RISE

E. coli 0157:H7 – contaminated prepackaged
fresh-cut spinach



Entire supply chain in lawsuits for over 2yrs
Hepatitis A – green onions



26 states, 204 ill, 3 deaths
650 ill, 4 deaths
Chi-Chi’s paid > $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
supplier’s 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


4 Tools





Developed by USDA and FDA
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 buyer’s 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 You
Elizabeth Haws Connally
Alston Hunt Floyd & Ing
808-524-1800
Ehaws@AHFI.com
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