Specialty Food Magazine is the leading publication for retailers, manufacturers and foodservice professionals in the specialty food trade. It provides news, trends and business-building insights that help readers keep their businesses competitive.
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Common Food Industry Lawsuits Five lawsuit types most impact the food industry, Stevens said: • Foodborne illness lawsuits. A foodborne illness is the result of disease-causing microbes, or pathogens, that contami- nate foods, according to the Centers for Disease Control and Prevention. Poisonous chemicals or other harmful substances in food can also cause foodborne disease. There are more than 250 such illnesses. When foodborne illness claims were presented in the past, noted Stevens, the cause of one's illness was unknown. Now, a mandatory recording system called PulseNet provides visibility into what's happening with foodborne illnesses and out- breaks. When a person tests positive for bacteria, such as listeria or salmonella, the patient's healthcare provider must report the positive culture to PulseNet. The state then does genetic DNA testing on the bacteria, and the genetic signature of the bacteria is uploaded to the CDC database for further observation. • Foreign object lawsuits. Foreign objects in food are mate- rials that are not reasonably expected upon consumption. For example, stones, rocks, or small pebbles may wind up in food, as well as glass, paper, plastic, and even human body parts. Makers should view these claims as possible but shouldn't take them at face value, Stevens cautioned. Food safety systems are tight for food manufacturers, so it is rare to encounter a foreign object issue that has any real merit, he asserted. • General commercial lawsuits. In the past, Stevens said, consumers who got sick from a product would bring a lawsuit against the manufacturer and the store where it was purchased. Today, general commercial claims are far more common where, rather than the lawsuit being brought against the retailer or the manufacturer, food companies will sue their supplier when they receive raw materials that result in an outbreak or a recall. • Undeclared allergen lawsuits. The Food and Drug Administration identifies the eight most common food allergens. They are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. The Food Allergen Labeling and Consumer Protection Act of 2004 is an amendment to the Food, Drug, and Cosmetic Act that requires that the label of a food product that contains an ingredient or protein from any of the major food allergens, declare the presence of the allergen in the manner described by the law. • Food labeling lawsuits. Food makers open themselves to the possibility of food labeling claims when they state some- thing on a label that isn't entirely true. Stevens recommended avoiding overstating certain claims and not making claims you can't back up. specialty food maker RECENT REGULATIONS TO KNOW Amendments to California regulation Proposition 65 will go into effect on August 30, 2018. Prop 65 sets food labeling requirements for manufacturers who sell products in California that contain chemicals that may cause cancer or reproductive harm. The amendments address new warning requirements. Currently, there are 900 chemicals that the state outlines as harmful, including acrylamide, lead, cadmium, and BPA. New regulations require companies to name at least one chemical on the state's list in the warning and give specific language as to whether the chemical is a carcinogen or toxic threat to reproduction or both. "These new regulations will change the nature of the warning that you're required to put on products," said Shawn Stevens of Food Industry Counsel. "They are changing from an old [version] to a new style of warning." Stevens explained that the regulation is expensive and disruptive to the industry. A company that fails to comply with the Proposition 65 warning requirements may be subject to a penalty of $2,500 per day per violation, plus added costs of defending against potential lawsuits. To date, private litigators have brought lawsuits against manufacturers that cost about $25 million a year in settlements. Company executives and food safety managers can be held responsible for foodborne illness outbreaks under Corporate Officer Criminal Liability law. 148 ❘ SPECIALTY FOOD MAGAZINE specialtyfood.com