The most difficult type of lawsuit to handle is one which claims that the food product caused injuries because it, or one of its ingredients, is hazardous to the health of consumers or food handlers, despite the fact neither the government nor the industry recognizes the product or ingredient as hazardous. These types of lawsuits gradually grow over time and must be managed long before the lawsuit actually occurs.
Initially, a scientist or doctor may issue a report that a particular food or food ingredient causes some type of injury or illness. Other scientists or doctors may dispute the initial claims. What should a food manufacturer do? If it undertook to change its formulas every time a rogue claim asserted some new medical harm, the company would be out of business. But as time goes by and the evidence both for and against the claimed hazard continues to grow, when will a jury ultimately say the manufacturer has enough “knowledge” that it should have taken steps to protect against the hazard? One can be certain that a plaintiff’s attorney will argue their client was injured because the manufacturer failed to take action based on that first rogue claim.
A reasonable person might assume if a manufacturer is producing food products in compliance with FDA regulations and industry standards, it should have no concern of civil liability. But in most states, compliance with the law and current industry standards provides only limited evidence that the food manufacturer was not negligent. It is still left to a jury to decide whether a “reasonable person” with the knowledge available to the manufacturer would have acted (or not acted) as it did.
To manage these particular types of claims, a manufacturer must monitor publically available information regarding its products and the ingredients in its products. When adverse reports are made public, the debate both for and against should be monitored. Industry standards and governmental guidelines should be followed. If evidence of hazard mounts or if others in the industry begin to react and restrict the use of the product, a decision whether to change course is necessary.
Hardee, a Polsinelli shareholder, has more than 25 years of litigation experience, representing clients in the food industry, toxic and mass tort litigation, product liability issues, business disputes, and transportation disputes. Reach her at email@example.com.