Foodborne Illness Response
njuries from spoiled food range in severity from the minor upset stomach to the tragic death of a child. The law of foodborne illnesses is a tangled web of federal and state law. Many food industries have secured some federal protection from liability to consumers. Pennsylvania, like most states, treats retailers, wholesalers, restaurants, caterers, and manufacturers differently, depending on the precise facts of the case.
If you own a business that sells or prepares food, state and federal law as well as your own industry standards provide you with health and safety guidelines. If you fail to meet those guidelines, you can be found presumptively negligent. Be sure that you meet all applicable safety standards and that you keep written records of your food safety practices and employee training.
Check Your Insurance and Your Contracts
Before you find yourself a defendant in a foodborne illness outbreak, check your insurance coverage to see if you have liability and attorney’s fee coverage for foodborne illness losses and lawsuits. Meet with your insurance agent to explore all possible levels of coverage and analyze the cost of the coverage in comparison to your potential losses if you are without coverage. Review your own loss coverage–do you have business interruption insurance and coverage for the losses you will suffer if you have to discard inventory?
Examine your contracts with your food suppliers. You can require that your suppliers “indemnify” you against liability–that they pay if you sell their contaminated products. Also examine existing contracts to see if you have already indemnified suppliers or customers. Many contracts, purchase orders, and invoices in the food industry contain indemnification language.
You need to know if you are accepting responsibility for another business. Track your supplies and ingredients as carefully as possible, particularly if you use multiple suppliers for the same food item. You need to be able to trace the path that a contaminated product took, both into and out of your business.
If you or a family member falls ill from a foodborne illness, you should take all possible steps to preserve evidence. Ask your health-care providers to preserve blood and stool samples. The best evidence that your illness was related to a particular outbreak is an actual lab sample from your body that contains the particular pathogen. Public health officials trace and identify the path of foodborne illness outbreaks, and their investigation and reports can be helpful to your claims.
Where an injured person cannot distinguish precisely which company or individual in a group produced or sold the contaminated food he or she ingested, the law imposes a burden on the group of responsible defendants to prove which among them was the most likely source. In order to shift the burden to a group of defendants, the injured claimants must prove that each defendant was responsible for making or selling the contaminated food.