Will PTI Put Liability Onus In Retailers’ Court?
Jim Prevor’s Perishable Pundit, October 23, 2009
Our extensive work in traceability and, specifically, the Produce Traceability Initiative has led many to express strong views. Before the PTI was even formed, we did an interview with a technical expert in these matters, Michael McCartney of QLM Consulting:
Getting A Better Grasp On Traceability
Now, in the aftermath of our publication of a piece built around a letter by Dan Sutton, Director of Produce for Albertsons LLC, Michael has sent his own letter:
Many thanks for your insightful viewpoints and the Pundit’s open approach to this and other important issues.
Here is one thought on PTI to perhaps put in the mix.
How Buyers might want to reconsider resisting PTI?
Assume I am a larger farmer who can flawlessly trace back every item within minutes and that I test every load of product before shipment to the buyer.
Now suppose that a serious problem occurs.
The farmer can prove that 100% of the product in question was tested before shipment and document that on every level the product was free of the suspected contaminate.
The question is who is responsible?
Can the buyers trace the produce through their system to the store and the shelf? Is the buyer now responsible for the claim, for the intended harm or potential deaths?
For example, did the produce handler in the store have a documented H1N1 leave of absence or does the retailer have a documented hygiene policy and monitoring practice?
My point is there are many questions that buyers need to consider if they can assume for the moment that the farm and farmer are out of the liability picture and that they, the buyers, are the only ones in the picture.
Is PTI expensive? Not when you count dollars in lives saved or brand preserved.
— Michael McCartney
Many thanks to Michael McCartney for raising this issue. The truth is that for all too long, food safety practices at retail have actually been liability-avoidance policies. That is why retailers may bend many practices but it is rare indeed for them to bend the liability insurance policy requirement.
One reason restaurants in the US have been the leaders in increased standards for food safety, rather than retailers, is that the law in the US has evolved.
Although at one point in time, consumers were deemed to be assuming normal risks in consuming products and thus manufacturers could only be held liable if the manufacturer was negligent or violated an implied warranty, this doctrine was superseded by a “strict liability” doctrine after a famous case known as Greenman v Yuba Power Products, Inc.
The 1963 unanimous decision of the Supreme Court of California established that a “manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”
One reason it is sometimes hard to get investment in food safety is rigor in process is no defense in court.
The manufacturer is liable even if the product was fine and sealed at the manufacturing facility. If someone opens the package in a store and adds pathogens, the liability standard is still to go back to the producer.
Now, of course, producers can sue retailers to recover losses the producer paid out under this strict liability standard. The producers can say the retailers were negligent in their duties to, say, refrigerate a product or protect it from tampering but that is A) A messy matter of suing one’s customers, and B) a much tougher case that involves proving negligence. A suit against a producer basically only needs to prove A) They produced the product, and B) it caused injury to a human being.
Now, if a producer could “prove” the product was “clean” when it left its facility, would that make a difference? Possibly, but probably not. Part of what a producer sells is adequate packaging. If a producer sells product in such a way that it is vulnerable to later contamination, the producer would likely be held responsible. It might under any standard be held responsible for selling packaging that inherently couldn’t protect the product but under this absolute standard, it would certainly seem liable. Despite its ancient pedigree, one could argue that selling unpackaged, bulk produce is inherently a flaw as a producer is putting into commerce a food item unprotected from contamination.
This explains why Michael’s erstwhile partner, Bruce Peterson — who we interviewed about traceability here — has often hypothesized that in the future all produce would be packaged. His focus was on allowing traceability on the item level — say a clamshell — but, legally, under this strict liability standard, producers are liable for what happens to product all along the chain, so they may well want to protect that product.
There also is a practical issue as to whether the standard that Michael proposes — proof that product was not contaminated when it left the facility — could ever actually be met. Tests can give false negatives and testing each load is not the same as testing each leaf. So this standard would be tough to approach in a court of law.
Now Michael ends his letter by raising two points — the cost of lives saved and brands preserved.
On the branding side, this is why foodservice has certainly been focused. They are making the food and so an outbreak speaks directly to their competency. It is not as clear that consumers blame retailers if a can of soup has botulism or a bag of greens has E. coli 0157:H7. Perhaps on private label, one could imagine an issue but consumers seem to hold Campbell’s Soup responsible for its own products, not retailers.
Saving a life is precious and many producers will spend above and beyond any requirements because they don’t want to be involved with killing people.
Yet acknowledging the value of a human life still leaves a lot hanging.
For one thing, choices still have to be made. Is traceability the right place to invest? Or is it food safety practices? What about finished product testing? Or for that matter, medical research?
And of course, we put prices on lives every day. If we lower the speed limit to 30 mph, fewer people will die, but we don’t do it because the cost is too high.
How to balance these things is no easy task, but that doesn’t mean it is not a job that must still be done.
Many thanks to Michael McCartney for weighing in on this important issue.