The Ethical and Legal Consequences of Poor Food Safety

1. The Ethical and Legal
Consequences of Poor
Food Safety
William D. Marler, Esq.

2. To Put Things in Perspective
• Microbial pathogens
in food cause an
estimated 48 million
cases of human
illness annually in
the United States
• 125,000 hospitalized
• Cause up to 3,000
deaths

3. Food Production is a Risky Business
• Competitive Markets
• Stockholder Pressures
for Increasing Profits
over Long-term Safety
• Lack of Clear Reward
For Marketing and
Practicing Food Safety
• Brand Awareness Risks

4. It is a Global Food Economy

5. What we all want to Avoid

6. Strict Product Liability
• Negligence
– Are you a
product seller?
– Did you act
“reasonably”?
• Strict Liability
– Are you a
manufacturer?
– Was the product
unsafe?
– Did product
cause injury?
• Punitive Damages
/Criminal Liability
– Did you act with
conscious disregard
of a known safety risk?

7. 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)

8. • The only defense is
prevention
• It does not matter if
you took all reasonable
precautions
• If you manufacture a
product that makes
someone sick you are
going to pay
• Wishful thinking does
not help
It’s called STRICT Liability for a Reason

9. Pathway of a Foodborne Illness
Investigation

10. Pathway of a Foodborne Illness
Investigation
If there are more ill persons
than expected, an
OUTBREAK might be
underway.

11. Pathway of a Foodborne Illness
Investigation

12. Litigation as Incentive – 20 Years Later
Odwalla
Jack in the
Box

13. Worthless Excuse No. 1
• If a document
contains damning
information, the
jury will assume you
read it, understood
it, and ignored it
“I never read the
memo.”

19. How Are Things are Different Today?

20. Now a 76 Count Federal Indictment
• Stewart Parnell, the
former owner of Peanut
Corp. of America
• Michael Parnell, who is
Stewart Parnell’s brother
and a former supervisor
• Samuel Lightsey, a
onetime plant operator
• Mary Wilkerson, a
former quality-
assurance manager
• Daniel Kilgore, plant
manager
• Allegations Include:
• Mail Fraud
• Wire Fraud
• Introduction of
Adulterated and
Misbranded Food into
Interstate Commerce
with Intent to Defraud
or Mislead
• Conspiracy

21. And, It Does Not Always Require Intent
• A 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.

22. 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.

23. Even Comedians Like Safe Food

24. Planning AGAINST Litigation –
What Is Really Important
• Identify Hazards
– HACCP
– Do you have
qualified and committed
people?
• What is the Culture?
• Involve Vendors
and Suppliers
– Do they really
have a plan?
– Ever visit them?

25. Planning AGAINST Litigation –
Establish Relationships
They are your best friends!