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Recent E. coli outbreak in the U.S. raises liability questions: Who is responsible for harm connected to production, distribution, consumption of food?

Widespread warnings against eating fresh spinach from the United States because of an E. coli outbreak in at least 19 states have given a whole new meaning to the health dictum "Eat your greens" – not just for consumers trying to stay healthy but for lawyers.

The Montreal Gazette reports that spinach-related outbreak and continuing scares about any spread to humans of avian influenza and BSE, or Mad Cow Disease, raise new challenges for those involved in the question of liability – or determining who is responsible – for harm connected to the production, distribution and consumption of food.

The spinach crisis provided unexpected topicality yesterday for an all-day session of the International Bar Association annual congress titled “Food Safety from Farm to Fork – Who Is Liable for Unsafe Food?"

On the food side, supply and distribution for the world’s consumer tables have become more global than ever before at a time when new pathogens are appearing and can spread more easily because of international human travel.

While lawyers in international law associations are struggling to bring the issues forward "to start to develop a conceptual framework," regulators and food companies are also wrestling with the new reality. 

We have now have 250 types of bacteria, parasites, viruses, toxins that will cause food-borne illness, what we call food poisoning, and 50 years ago, we only knew about 50 of them.

E. coli, or 015:H7 bacteria, was only clearly identified a little more than 10 years ago, with the first notable case being the death of four children in 1993 from so-called hamburger disease, or eating undercooked meat.

Additionally, technology has enabled quicker and more detailed analysis. That has sometimes led to recalls or product notifications by companies who consequently face millions of dollars in losses whether or not a real threat is present.

Businesses throughout the food-supply chain also increasingly have to bear the cost of new demands by large retailers who are insisting on the new concept of "traceability," or insisting that suppliers provide warranties or guarantees as to where the ingredients came from or were 

Still, the specter of a potential flood of class-action suits with more food-related health outbreaks remains ever present. Health Canada estimates that one in three Canadians will be affected by some kind of food-borne illness each year.

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