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Food Safety News

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Publisher’s Platform: Why Food Retailers Really Don’t Care

Opinion

If you were not legally responsible for the food you sold, why would you give a %^&$ about food safety?

The next time you walk down the produce aisle (with your kid in tow) picking out fruits and vegetables to feed your family, ask yourself the question I ask myself when I do the same: “Does this retailer– locally, regionally or world-wide owned–really care if what it sells you has a pathogen on it, or in it, that can kill or maim me or myfamily?”

Of course they say they do.  You can see it in their ads to entice you into the stores to buy the produce–“farm fresh” or “local” –you have seen it, and likely believed it.

But, it could be a lie.

The retailer might well talk about food safety of the produce it sells, but it knows very well that it has had a bevy–or, is it a gaggle?–of lawyers, whose job it was to write contracts to push responsibility for safe food as far away from the retailer as lawyerly possible.

Please bear with me and actually read some real contracts between retailers and brokers, shippers and farmers, where retailers successfully pushed food safety responsibility on to those brokers, shippers and farmers.

INDEMNIFICATION.     ___________ shall protect, defend,hold harmless and indemnify ___________, including itsofficers, directors, employees and agents, from and against anyand all lawsuits, claims, demands, actions, liabilities, losses,damages, costs and expenses (including attorneys’ fees andcourt costs), regardless of the cause or alleged cause thereof,and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged:

(b) Death of or injury to any person, damage to any property,or any other damage or loss, by whomsoever suffered, resultingor claimed to result in whole or in part from any actual oralleged use of or latent or patent defect in, such Merchandise,including but not limited to:

(i) Any actual or alleged failure to provide adequate warnings,labelings (sic) or instructions,

(ii) Any actual or alleged improper construction or design of said Merchandise, or

(iii) Any actual or alleged failure of said merchandise to comply with specifications or with any express or implied warranties of Supplier.

And, here is another:

Indemnification

a)  __________ shall indemnify, defend and hold __________,its parent, subsidiary, and affiliated corporations, and theirrespective officers, directors, employees, and agents, harmlessfrom and against any and all liability, claims, and damages(including reasonable fees of an attorney of __________’schoice) arising from or in connection with the Products including,but not limited to: (i) claims for property damage, personal injuryor death; (ii) claims by governmental agencies; and (iii) claimsfor refunds or credits due to the weight of the packages or poorquality.

b) This indemnification shall not apply to the following: i) liability,claims, and damages which are caused solely by the negligenceor intentional misconduct of _________.

What does the above really mean?

It means those retailers can push all responsibility for the production of safe food on to others.  Simply put, you may well think that the retailer actually cares that the food you buy from them is safe, but they have spent much on lawyer fees to make the reality something very different.  And, when you consider that those same retailers can also set the price they will pay for the produce that they buy, they also deny the pennies that brokers, shippers and farmers need for fair profits, fair wages and food safety.

Retailers know that when brokers, shippers and farmers sign these contracts, and say a spinach E. coli outbreak sickens 200, killing five, or a Listeria cantaloupe outbreak sickens 147, killing 33, the retailer can talk about safe food but never really pay for it.

The only ones who pay for it are sick consumers.

© Food Safety News
  • http://burningbird.net Shelley Powers

    Putting on my devil’s advocate hat, what would you have the retailer do?

    When there’s a recall, retailers do pull the item.

    Larger concerns, such as Wal-Mart already have safety requirements that suppliers must agree to, but all the company can do is react after the fact if the supplier really doesn’t adhere to them (and drop them as a supplier).

    http://az204679.vo.msecnd.net/media/documents/food-safety-requirements-for-produce-suppliers_130042261618354678.pdf

    Retailers participate with efforts such as the Global Food Safety Initiative, requiring suppliers be certified.

    http://www.mygfsi.com/

    The have to meet local, state, and federal requirements as a public re-seller.

    Ultimately in the end, retailers are just as dependent on our system of laws, enforcement of the laws, safety checks, and trust in producer as we the end consumer.

    So, what more should they do?

    • abraxasMN

      Thank you for asking this question, Shelley. It was what went through my mind as well. What do we expect out of our grocery stores?

  • Mike_Mychajlonka_PhD

    I have talked with more than one store manager representing chains you would instantly recognize, if I named them who have told me, quite baldly, that they see their job as selling the goods that come in on the delivery trucks and who consider food safety as a “Corporate Problem.” Nevertheless, it must also be recognized that in the apparently ongoing Hepatitis A outbreak, lawsuits have been brought against both the manufacturer (Townsend Farms) AND the retailer (Costco). The three legal theories holding both responsible were: (a), Strict Product Liability – product left the defendants control with a manufacturing defect, i.e., the Hepatitis virus contamination which the defendants failed to warn consumers about, hence their liability; (b), Negligence – the defendants owed the customer a duty of care in manufacture, preparation, testing, packaging, marketing, distribution and selling and especially warning the customer about possible life-threatening dangers lurking in the product and that failure to issue such a warning constitutes negligence. and (c), Breach of Implied Warranty – both Townsend Farms and Costco sold the mixture in question for human consumption and thereby established the implied warranty that the food was safe for human consumption, when it was not, due to the Hepatitis virus contamination. Furthermore, neither Townsend Farms nor Costco disclaimed any such implied warranties when selling product, thereby contributing to the breach. Now, I have no idea of whether or not Costco had Townsend Farms sign any such agreements as you have described in your article. However, even if Townsend Farms had sign such a document as a condition of selling to Costco, are you saying that this agreement would shield Costco from any responsibility? Could not Townsend Farms claim to have signed under duress, citing Costco’s large size and market dominance? To put my question another way, do retailers really “get away with it” or are they just woefully underestimating their own risk? The distinction seems an important one to me.

    • Tom

      There is a company called “zaXpire, Inc.”, based in Portland, Oregon, working with local retailer to address (and test) exactly the same issue about food safety. There solution as I understand is to instantly inform consumers about any safety issue found by anyone in the chain (producers or manufacturers or transporters or distributors or retail stores).

  • Kay Van Wey

    Thank you for a great article Bill. Are you aware of any efforts being made to hold the manufacturers liable for their false advertising claims that are making people obese?

  • Ray Hammond AAI

    Risk transfer is a responsible practice and has long been a sound business risk management strategy. That doesn’t mean they don’t care.

    On the contrary- the retailer is dependent upon growers, packers, and wholesalers to do their part in ensuring a safe wholesome product to the end user. Its therefore only reasonable to use strategies which make others responsible for their involvement. In that way we establish a ‘chain of custody’ whereby each entity involved has a sense of duty to do their part.

    Should the retailer be found at fault for improper handling the courts would make sure they’ve got skin in the game- contract notwithstanding.

  • bill

    It is impossible to provide 100% protection against any food born pathogens. All a retailer can do is purchase through reputable sources. Those sources most likely have all the legal beagle forms to protect themselves and this goes all the way back to the farmer. Do you think the local roadside stands offer any protection? The flea markets? The back of the pick-up truck vendors who are never in the same place twice? You can’t even protect yourself by growing your own food…too many variables to deal with.

    • VTChick

      I disagree that all a retailer can do is purchase through reputable sources. That’s step one. They also have to have good food handling procedures and staff who understand the importance of temperature control, good handwashing practices, good personal hygiene, proper glove use, and basic cleaning and sanitizing of surfaces (including slicers, scales, etc.).

  • VTChick

    The Co-op Food Stores in Hanover and Lebanon, NH, and White River Junction, VT, have over 100 ServSafe-certified employees in all departments, including the cashiers. Every employee takes a Food Safety Standard Operating Procedures quiz within 90 days of being hired, and all employees who work with perishables have to take the Co-op’s 4-hour food safety class that covers major pathogens, handwashing, glove-wearing, cleaning and sanitation and other aspects of the food safety SOPs that everyone must know about. The Co-op Kitchen that produces the stores’ prepared foods have HACCP plans for all of their products. It CAN be done.

  • Dealz

    #1 priority of all retailers is PROFIT not people….better to buy local and let retailers feel it in their wallet. Recalls only after the food is eaten…reauctions of food and traceability? Reminds me of Dave Dillon with Obamacare stating cheaper to pay the big penalty than to comply with the law…..and Kroger wants you to trust the FOOD they sell you to feed your family?

  • Lucia van Eck

    The retailer actually should bear joint responsibility for selling anything that could kill or hurt another human being. ONLY serious public opinion can bring this about. There may be allowances made for risk transfer but that is the easy way out, until its your kid that gets sick. Nothing wrong with holding a retailer accountable. Keeping the store clean, managing sell by date produce well and taking the possibility seriously. Why wait for it to happen? Fight it and win! We are so focused on profits these days, we loose the plot. What about reputation? What about standard? What about taking pride in being the best and the safest? Bears thinking about.