Earlier today, Bill Marler shared his thoughts on new proposed legislation in Colorado that provides a remarkable level of protection for food retailers who sell contaminated food. The bill would strengthen defenses that already exist under Colorado law for “non-manufacturing” sellers – providing immunity even where the manufacturer is bankrupt or outside the jurisdiction of the Court (i.e. a foreign producer.) You can view the full text of the proposed legislation.
It is worth noting that Colorado’s current product liability scheme already provides protection for non-manufacturing retailers – more than most states. Marler Clark has dealt successfully with a challenge based on Colorado’s current scheme, but it is already a significant hurdle for consumers.
In August, 2008, Marler Clark filed a lawsuit on behalf of a Colorado resident and victim of the Salmonella Saintpaul outbreak traced to jalapeno peppers. Wal-Mart, the retailer of the peppers, filed a Motion to Dismiss based on upon Colorado’s existing product liability statute, CRS 13-21-402(2). Wal-Mart argued it should be dismissed as an innocent seller, even though it had to that point refused to divulge the source of the peppers. Thankfully, and rightfully, the Court denied the motion. You can read Marler Clark’s brief in opposition.
If the proposed legislation were to become law, it is not clear that the result would be the same. Consumers would be left without any recourse for illnesses that resulted from food that originated anywhere outside the reach of Colorado’s court system. Simply put, this is a terrible idea. The retailer or retailers who are pushing this idea should change their focus – don’t seek immunity for passing along contaminated food. Instead, strive to avoid selling contaminated food in the first place.