Council of State and Territorial Epidemiologists Conference (2011)

Marler Clark Managing Partner Bill Marler and In-House Epidemiologist Patti Waller shared their legal and scientific insights on consumer protection in food safety at the 2011 CSTE conference in a presentation titled "Canaries in the Coal Mine."

Speech Abstract:

Consumers place great trust in our food supply. Since foodborne pathogens are generally odorless and tasteless, consumers cannot fully evaluate the quality of the food they purchase. Thus, they serve as “canaries in the coal mine,” a reference to early mining practices of using canaries to detect dangerous gas build-up. A dead canary meant immediate danger just as an ill consumer signals defective and unsafe food. Yet, the complexities of our modern day food supply impede detection of system failures that contribute to foodborne illness. The result is that most food related illnesses are never recognized and the party at fault is not held accountable. The lack of marketplace accountability for foodborne illness means that manufacturers and distributors have little incentive to incur costs to prevent foodborne illness. Adding insult to injury, in most instances it is the consumer who pays for a manufacturer’s decision not to invest in food safety. Must the consumer be relegated to canary status with little control over his fate?

In a sense, foodborne illness litigation serves as consumer advocacy for food safety. Foodborne illness litigation is based on strict liability laws which put the costs of injuries resulting from defective products on manufacturers. If the facts of the case clearly show injuries due to consumption of contaminated food, foodborne illness related lawsuits are easy to prove. Economically speaking, a product liability lawsuit is a mechanism to shift the costs of damages caused by the sale and profit of unsafe food from the consumer to the manufacturer. Lawsuits can affect the behavior of firms that make or distribute food products although the magnitude of this effect is unknown. Settlements are kept confidential and most cases do not go to trial. Furthermore, process and product innovation more often occurs after illness occurs.

In this presentation Bill Marler will discuss the law behind foodborne illness litigation and provide examples of how litigation has contributed towards improved industry practices to promote food safety.