Every year, millions of people are affected by food-borne pathogens such as E. coli, salmonella and listeria. While the most urgent concern in any such situation is the sickened customers’ health, large outbreaks make big news which negatively impacts a food professional’s business and can even destroy it. In some cases, owners and operators can also face criminal liability. Understanding food safety liabilities and legal issues and preventing any sort of outbreak – large or small – not only protects consumers but preserves a food service operator’s reputation and bottom line.
In the U.S., a business is usually strictly liable for selling a contaminated food product. In other words, an affected customer does not need to prove and identify the particular failure of the business but only needs to prove that the food was contaminated and caused illness. Given the breadth of food safety regulations, nearly any company in a food supply chain can be held liable.
The FDA Food Safety Modernization Act
Most recently, in April 2016, the Food and Drug Administration (FDA) published the Food Safety Modernization Act (FSMA) rule on Sanitary Transportation of Human and Animal Food. This rule became effective in June 2016. The purpose of the regulation is to advance FDA’s efforts to protect foods from farm to table by keeping them safe from contamination during transportation and to create a modern, risk-based framework for food safety. The goal of this rule is to prevent practices during transportation that create food safety risks. Recognizing that many businesses, particularly small businesses, may need more time to comply with the requirements, the compliance dates are adjusted accordingly.
Other Food Safety Laws and Regulations
It is not difficult to pin liability on food producers, retailers or foodservice operators. A claim can be based on the implied warranty that the food was unfit for consumption and the business failed to take reasonable care to ensure it was safe. There is also a variety of federal regulations relating to facility registration, recordkeeping, labeling, and reporting regarding events involving illness resulting from food-borne contamination. In addition to FDA’s requirements, food businesses are subject to other federal, state, and local requirements.
How to Mitigate the Risk and Liability Related to Food Safety Issues
There are several steps and precautions operators can take to reduce the likelihood of food-borne illnesses and to make dealing with a problem easier. First, businesses should require thorough written contracts that its suppliers comply with safety standards and that everyone in the supply chain have appropriate liability insurance coverage. In addition, foodservice operators should keep detailed records regarding all food product purchases in order to be able to determine where products came from. Finally, in addition to getting to know your local rules and regulations, become familiar with the relevant government departments and officials that have jurisdiction over your business. In the event of a food-borne illness outbreak at your establishment, you will be better able to navigate an investigation and understand what is necessary to mitigate the circumstances.
For further information regarding this topic, please contact:
Jonathan M. Weis at:
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