Agriculture Reference
In-Depth Information
produce), regulations impose a predictable cost that companies can meet, but need not
exceed. Thus, even though certain spinach growers had invested far more than others
before the 2006 Dole baby spinach outbreak occurred, the outbreak hurt the market
as a whole.
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Nonetheless, in the wake of the 2006 spinach outbreak, the spinach industry
actively sought regulations, albeit ones that would be created, policed, and enforced
by industry, not the government. Sensing that certain competitors had already invested
in many of the food safety improvements that proposed regulations might require, and
that the food safety bar might be set too high, the green leafy produce industry drafted
marketing agreements that would put in place a set of minimum requirements that all
market participants would have to meet to sell their produce.
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It is notable that the
minimum requirements were less stringent than what one major market participant
already had in place. For example, in one article examining the changes the following
was noted:
Fresh Express requires an 800-foot buffer between fi elds of leafy greens and
pastures and one-mile buffers between leafy greens and feed lots. “The (leafy
greens) metrics could do better, but they certainly set a fl oor,” says Jim Lugg,
food-safety chief for Fresh Express.
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By setting the safety bar lower, and ceding the more stringent requirements to the
then market leader, the marketing agreement had the effect of leveling the playing
fi eld for the rest of the market, and ensuring that all would bear similar costs in meeting
the improved safety requirements. This was, in fact, an anticompetitive move that
created a set of safety requirements that were less stringent than what would have
likely resulted if market participants had competed in an open market for safety. Such
a move was also an attempt to head off the efforts of the Food Marketing Institute,
which represents large retailers and wholesalers, and the National Restaurant
Association to develop a separate set of safety requirements that could be imposed as
contractual purchasing requirements. In short, the spinach industry wanted to make
sure that safety improvements cost as little as possible.
Reducing Liability by Spreading the Blame
Given the strictness that is strict liability, in practice, the best defense to such a claim
is the ability to shift the liability to elsewhere. This can be attempted in a variety of
ways, some likely to be more successful than others.
Indemnifi cation, Contribution, and Allocation of Fault
Not long after its widespread adoption, the doctrine of strict liability expanded to
include everyone in the chain of distribution, meaning that the sale of a defective
product was enough to create liability, even in cases where the seller had no reason
to suspect that the product was defective and no opportunity to prevent or warn about
the defect.
Not surprisingly, when deciding whom to sue over an injury-causing defective
product, the immediate seller was the most popular choice. One big reason for this
