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Lytton Interview: The Role of Litigation in Food Safety

Albany Law School professor and author Tim Lytton sat down with Food Safety News at the 2015 Food Safety Summit last month in Baltimore, MD, to discuss the influence of litigation on food safety. Lytton describes litigation as one of the three key pillars of the U.S. food safety system, along with government regulation and private industry standards.

Lytton is working on an upcoming book about the U.S. food safety system and has written several books on tort litigation and industry regulation.

Watch the interview below:

© Food Safety News
  • Gordon Hayburn

    interesting article – can we add a fourth pillar – consumer common sense and some self responsibility. I think this is far too often overlooked.

    • I’m somehow negligent because I ate an apple?

      • Gary

        No Shelley, just proper handling and preparation of foods. An apple, for example, should be rinsed properly before eating.

        • Jim Richardson

          …and the caramel apples that were the source of the recent outbreak? Should the consumer remove the caramel coating, rinse the apple (if that would even remove the contamination in every case), and then reapply the caramel?

          • Fred Jewett, CFS

            It would seem to me that the apples would be a ‘raw ingredient’ to the production of the caramel apples, so that the maker of the finished good, the caramel apple, would carry the primary responsibility to process that raw ingredient to reduce any pathogen load to an acceptable level. Raw agricultural commodities have traditionally been assumed to be contaminated until they have passed through some processing step.

          • Jim Richardson

            That was my point, Fred. Therefore, the glibertarian response of “consumer common sense and some self responsibility” cannot replace regulation, nor litigation, in food safety – because the producer of the food bears the responsibility to not poison their customers.

          • Gary

            Jim, so placing a fourth pillar as the original poster described is removing litigation or regulation? The point the OP is making, as am I, is consumers have some responsibility as well in the way they handle and prepare their foods.

            The food industry has a responsibility to produce a safe product, but
            the consumer also has a responsibility to handle and prepare their foods
            in such a way as to keep them safe, or not render then unsafe.

            Is the producer of uncooked chicken responsible when a consumer falls ill to salmonella if that consumer did not handle or prepare the chicken appropriately? No, of course not.

          • Jim Richardson

            That depends on whether salmonella is legally classified as an adulterant or not, which hopefully it will be soon, and then the producer will be 100% liable if it is introduced into commerce. If you can make a legal case against a consumer for getting poisoned by an adulterant, then go for it!

          • Gary

            Hi Jim, ok…let me make this simple for you. It is a SHARED RESPONSIBILITY. I never said that food manufacturers don’t hold responsibility to ensure their apples are not contaminated with listeria.

            Dear God…is this where we are right now? Everyone pointing fingers at everyone else and so myopic they can’t even see the forest for the trees?

          • Jim Richardson

            I am not against shared responsibility or personal responsibility. But that simply does not apply to many cases, like the candied apple, where 100% of the responsibility lies with the producer since there is no way to wash a candied apple as you must admit. A consumer poisoned by a candied apple is 100% within their rights to sue and that is just and good. The rights of the producer to engage in commerce do not trump my right to buy unpoisoned food. There is no implication of shirking responsibility.

        • How much rinsing? Water only, or water an bleach? Does the water have to be boiling hot?

          You have an amazing amount of faith in the simple act of “washing an apple”. You seem to believe it should absolute the apple producers from any culpability.

          Question: how does one wash a caramel apple?

          Now let us talk about cantaloupes. No amount of rinsing that an individual takes at home will make a cantaloupe “safer”. So is the consumer to be blamed because they cut into the cantaloupe and therefore provided a means for skin pathogens to contaminate the fruit?

          How does one eat a cantaloupe without breaking the skin?

        • Sorry, make that “absolve” not “absolute”.

  • Karl Gunnar Kolb

    The dollar amount of penalties and fines should be limited – the fresh cut food industry is just that, fresh cut. Until some process comes along that can remove all the bad bugs, the consumer is part of the supply chain that carries responsibility from node to node. Excessive penalties and fines stifle new entry into the industry and the desire to seek innovation and technology. Slowly only the large manufacturing farms will be the only ones who dare to grow. Agriculture is moving overseas where the ability to grow and harvest according to good agricultural procedures is questionable.

    • I have to ask: what is “excessive”?

      “Agriculture is moving overseas where the ability to grow and harvest according to good agricultural procedures is questionable.”

      But the companies who sell here do business here. That, or they have some form of relationship with a US-based company. And if their practices cause suffering, they are subject to the same liability laws that govern those who have their headquarters in this country. Moving production offshore has no impact on food safety liability.

      This all could very well change with TPP, but I don’t think companies are moving food production overseas because of their concerns about legal liability.

  • billmarler

    Karl, what limit would you put on a 20 year old dancer who is now brain damaged, cannot walk and will need a kidney transplant? http://www.nytimes.com/2009/10/04/health/04meat.html?pagewanted=all&_r=0 Or, a mother of six who spent two and a half years hospitalized before she died? http://www.washingtonpost.com/wp-dyn/content/article/2009/08/31/AR2009083103922.html

    Any food production that is going overseas is not because of litigation risk, that risk is still borne by the importer and retailer if the defect was caused in a place where US courts can not have jurisdiction.

    Also, as for consumer fault, there is the concept of “contributory fault’ in the law. Any manufacturer can ask a jury to apportion a percentage fault against a consumer.

  • Barry Levenson

    Litigation – or at least the threat of litigation – is what keeps the food industry on its toes. So long as the primary responsibility of a food company is to its shareholders, the economic incentive to stay out of costly litigation will be the consumers’ best protection. It’s not that the food industry is evil but the temptation to cut costs can sometimes overwhelm sound judgment.

    Litigation is one of the three pillars of a vibrant food law system. Legislation and regulations are vital but they can only go so far.

  • Interesting interview. I’m not sure that we’re going to see a dialog between food producers and litigators. What we are seeing, instead, is an increased demand for tort reform from the corporates. In fact, just read a very odd piece by a well known corporate front man who suddenly notes the “need” for tort reform.

    The food producers might be more amenable after an event, when they’re going to want to present a “We’re doing everything we can” persona. Not before, though.

    I can see a dialog between food safety folks and litigators. We see that all the time here in FSN. But producers who are pushing things like ag-gag laws…no, they’re still in an adversarial mode. They’re just not that sophisticated.

    They’ll go to lawyers, or have their own, true. And the lawyers will advise them on liability—but more along the lines of following the letter of the law, rather than the spirit of the law; to lower their liability if an event happens, but not necessarily to lower the prospect of an event. Or worse: change the laws in order to undermine the impact of an event.

    As for the liability carriers, now that could be an interesting avenue. Except the same corporate that influences the corporate food producers, influences these companies. They, also, are more likely to follow a path to undermine the damage, rather than prevent events.

    I do not see things getting better. If anything, I’m seeing things getting worse.