Dr. Douglas Powell, associate food safety professor at Kansas State University, posted yesterday on www.barfblog.com about the recent announcement by the Dept of Ag and the FDA regarding their plans to increase testing of beef trim for E. coli O157:H7 (why are other shiga-toxin producing strains of E. coli not per se adulterants?) and to strengthen safety protocols for fresh fruits and vegetables.  Dr. Powell notes that "Fresh fruits and vegetables are one of, if not the most, significant sources of foodborne illness today in the U.S. – and it’s been that way for over a decade."  We’re obviously talking about important stuff.

But, Dr. Powell raised another issue that, being a lawyer, I think is important.  In discussing the rather lax approach to food safety issues taken by producers of fresh fruits and vegetables (i.e. those consumed without a "kill step," meaning, for present purposes, without being cooked), Dr. Powell states:

I looked at the 2009 CSGs and the 1998 FDA guidance document – and I can’t see much of a difference in the on-farm stuf. Maybe I’m slow on the uptake; maybe guidelines are meaningless without implementation and verification; maybe growers keep asking for government babysitters so when the next outbreak happens, they can say, but we followed FDA guidelines (good luck with that).

(Notably, the parenthetical is in the original)

This is a mouthful, but an important one.  Perhaps the most important key to change, speaking broadly, is to recognize that there’s really no alternative to it.  (1) It is a shocking financial drain for all of us, food companies included (to the combined tune of about $3,000,000,000 to $7,000,000,000 annually); (2) it causes unimaginable suffering (for a case in point, see the story of John McDonald); and (3) in legal terms, they are liable for injuries caused in an outbreak even if they were following FDA guidelines

As you can see, it’s the parenthetical in Dr. Powell’s statement that got me thinking . . . and writing.  Now he may be speaking in a more regulatory sense, but he has very simply, even if off-handedly, summed up the law of strict liability, or liability without regard to fault.  In practice, this means that a food producer will be liable for injuries that occur to consumers during an outbreak without regard to whether the producer was following the FDA guidelines.  

Having spoken to thousands of people across the country in the food industry and in public health, I know that this concept sounds offensive to some people.  But when you pause for a moment to think where the safety of our food supply might be without the media attention recent outbreaks have gotten, and without lawsuits that put the immense costs of illnesses and medical treatment squarely back in the food producer’s hands, the concept begins to seem a little less grim.  Grim or not though, the law of strict liability is the law of the land.  

That said, I will offer a short anecdote that may help lessen the sting of strict liability laws to food producers.  Maybe not.  In any event, we handled a Salmonella outbreak in Georgia years ago linked to a national chain restaurant.  Around thirty people were sick, and the public health investigation never identified the precise route by which the Salmonella bacteria got into, or onto, the food (though there was a clear candidate in a piece of equipment that looked like it was last washed in the 90’s).  At the deposition of the lead public health investigator in the outbreak, the defense attorney was trying to make hay of the fact that the precise vector of contamination was never found–the argument being that the plaintiffs, as a result, could not prove that the defendant did anything wrong.  "BS," or something to that effect, was the response given by this seasoned public health official.  "There’s always a breakdown somewhere."  

After years now of doing this, I would agree.  The law of strict liability certainly aids the plaintiff in a food-contamination lawsuit, but I can’t remember the last time we were involved in a case where I thought, at the end, "I really don’t know if we could have proved a negligence case."  "There’s always a breakdown somewhere."