Food Recall

Food product recalls occur for a variety of reasons, including:

• Mislabeling
• Contamination
• Adulteration (fails to meet federal, state or industry standards)

Fort Myers injury lawyers at Associates and Bruce L. Scheiner, Attorneys for the Injured, work to obtain compensation on behalf of those who have fallen ill or died due to unwittingly consuming dangerous food products.

While a recall does not automatically make a food manufacturer liable for injuries or illnesses, it may help to establish the product was defective. However, some courts do not allow the recall to be used as evidence. In either case, plaintiff must prove the elements of the product liability claim, namely that a particular product was defective/ dangerous and the defect caused plaintiff’s injuries or illness.

Manufacturers and distributors cannot use the recall to win claims, unless it’s established that plaintiff received adequate notice and warning of the potential danger.

In general, producers of food can recall their products from the market when the products or improperly labeled or when a food may present some type of health hazard to consumers because of evidence the food is contaminated or is the root cause of an outbreak of foodborne illness.

When a manufacturer or distributor chooses to recall food or food products on its own, this is known as a voluntary recall. The U.S. Food & Drug Administration (FDA) also has the authority to require a food recall, per the Food Safety Modernization Act, signed into law in 2011. That usually only occurs when the manufacturer/ distributor has refused an FDA request to voluntarily recall the product. Prior to that law, the FDA had to rely on a company’s voluntary decision to issue a food recall, even if there was evidence the food could be hazardous to humans or animals. Now, the agency can issue a mandatory recall if the food producer/ distributor refuses to pull the items from store shelves.

The FDA also has the authority to suspend the registration of any facility (under certain circumstances) if there is evidence the food was made, processed, packaged, received or held in a way that presents serious health hazards. A company that has had its registration suspended won’t be able to legally sell food in the U.S. until that suspension is lifted. But that’s a rare scenario.

In fact, a report by the Office of the Inspector General (OIG) for the Department of Health and Human Services indicated the FDA lacked efficient and effective food recall initiation process that help ensure food sold in the U.S. is safe. Specifically, the policies and procedures directing staff on how to promptly carry out voluntary food recalls were lacking. In some cases analyzed, it took more than five months after companies were aware of food hazards – and nearly three months after the FDA learned about it – to successfully initiate a recall of those products.

That opens the door for many unnecessary foodborne illnesses and potentially deaths before the public finds out what manufacturers and regulators already know.

When a food product is recalled, it is given one of three classifications, depending on the level of the hazard:

• Class I: The product is defective or dangerous and predictably could cause serious health problems or death. Examples would be food that is mislabeled as it contains undeclared allergens or food found to contain some type of botulinum toxin.

• Class II: Product could cause a temporary health problem or pose slight threat of a serious nature.

• Class III: Product is not likely to result in any adverse health reaction, but it nonetheless violates federal regulatory labeling or manufacturing law. An example might be a minor defect of a container or a lack of English language labeling on food.

Most litigation will result from Class I food recalls.

If you fall ill due to consumption or exposure to defective or dangerous food products, you may be entitled to damages. You may not even need to file a lawsuit to get it.

Many standard commercial general liability policies will provide coverage for claims of food contamination. Filing a claim with the manufacturer may result in you receiving a reasonable amount of compensation, but it’s best to have a lawyer help you with this, as the question of damages may not be a straightforward one – especially if your injuries were severe. Generally, these policies will cover food recall-related damages if:

• Error was unintentional or inadvertent;
• Involved contamination or mislabeling;
• Product was insured;
• Contamination/ mislabeling occurred as a direct result of production, preparation, manufacturing, packaging or distribution;
• Use or consumption of product resulted in bodily injury within 365 days of consumption;
• Use or consumption of product resulted in physical damage to or destruction of tangible property.

However, just because coverage exists doesn’t mean it will be paid without issue. Take for example the case of Fresh Express v. Beazley, wherein a company marketing packaged fresh spinach violated its own internal policies requiring an internal food audit for contaminants. After several people got sick, the company did not issue a recall, but instead swept the products from the shelves, still incurring millions of dollars in losses. The company sought insurance coverage from its insurer to pay injured consumers, but the insurer denied coverage. Although the food producer won at trial, the California Court of Appeal for the Sixth District reversed, finding no evidence existed showing a causal connection between the error and the food illness outbreak.

If the food manufacturer, distributor or insurer refuses to issue a fair payment for compensation, you may have no choice but to file a lawsuit. In this scenario, you absolutely need an experienced product liability lawyer. You should know that every company in the food supply chain faces potential liability, so often there are at least two defendants, sometimes more.

800-646-1210 – Associates and Bruce L. Scheiner – Focused on Justice