Agriculture Reference
In-Depth Information
21
Contaminated Fresh Produce and
Product Liability: A Law-in-Action
Perspective
Denis W. Stearns
Introduction
The challenges of produce safety are not often examined from a legal, economic, and
political perspective—or what is sometimes referred to as a “law-in-action” perspec-
tive.
1
When one looks at the ever-growing number of foodborne illness outbreaks
linked to contaminated produce, there is no escaping the conclusion that there are
more challenges than understanding of the scientifi c basis of how and why such out-
breaks occur. Although a signifi cant majority of the foodborne illnesses caused each
year are never attributed to a particular source, we know that during the last 10 years
an increasing proportion of the illnesses have been caused by contaminated produce.
2
For example, there have been 24 outbreaks associated with leafy greens since 1996,
with twenty of those involving
E. coli
O157:H7. It was the 200+ illnesses, 5 deaths,
and widespread publicity surrounding the 2006 outbreak linked to Dole baby spinach
that fi nally did for spinach what the 1993 Jack in the Box outbreak of
E. coli
O157:H7
did for ground beef: it put the public on notice.
Against this backdrop we can see that the risk of microbial contamination, whether
it occurs during growing, harvesting, or processing, is not the only risk that must be
understood. The fact of contamination occurring can have signifi cant and far-reaching
consequences, both economically and legally. Fortunately, the last 10 years of food-
borne illness litigation, an excellent example of law-in-action, provides an effective
lens through which to focus and gain the broader perspective necessary to better
understand the challenges and the risks associated with growing, harvesting, process-
ing, and selling fresh produce.
Legal Responsibility for Foodborne Illness
When we speak of legal responsibility for a foodborne illness we are speaking of an
area of the law broadly referred to as
product liability
. In general, product liabi-
lity is an obligation, enforceable by a lawsuit, to pay monetary damages to a person
as compensation for injuries caused by an unsafe product. To best understand product
liability as it applies to food safety, it is helpful to know something about how
this area of law has developed, moving from an era where persons injured by
products had little in the way of effective remedies, to the current one in which a
person injured by defective food has less problem successfully asserting a legal claim
for damages.
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