By Jill Hollingsworth, VP Food Safety and Retail Industry Relations, Ecolab
On October 25, 2022, attorney William (Bill) Marler addressed the NGA Executive Conference attendees. A prominent and well-known foodborne illness attorney, Bill has represented thousands of individuals impacted by foodborne illness. Bill and his law firm, Marler Clark, have won more than $800 million in settlements for the victims of foodborne disease. Following is a recap of Bill’s presentation.
Bill explained how legal terms apply to foodborne illness litigation. When determining if strict liability is applicable, there are three questions to ask:
- Are you a manufacturer?
- Was the product unsafe?
- Did the product cause injury?
It does not matter if the manufacturer took all reasonable precautions. As Bill warned, “If they manufacture a product that makes someone sick, they are going to pay.”
Likewise, a misdemeanor conviction (under the Food, Drug, and Cosmetic Act) does not require proof of intent. A person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation. There is no need to prove fraudulent intent, or proof of knowing or willful conduct. Convictions under the misdemeanor provisions are punishable by no more than one year in jail, a fine of no more than $250,000, or both. Felony convictions carry a higher burden of intent.
Bill has become a major force in influencing food policy in the U.S. As he reminded us, the Jack-in-the-Box outbreak of 1992, which sickened over 700 people and was linked to the death of 4 children, led to the designation of raw ground beef contaminated with E. coli O157:H7 as adulterated within the meaning of the law. Bill stated that, not surprising, such regulation has actually resulted in a decline in his law firm’s revenue from cases associated with ground beef and E. coli O157:H7 – a trend he is glad to see. He advocates for greater enforcement of the Food Safety Modernization Act, wider adoption of Food Safety Culture, and expansion of the meaning of adulteration when a pathogen is present in food.
Next, Bill went on to provide examples of some of the most impactful outbreaks over past years. He discussed how in recent years we have seen a shift in the types of food linked to outbreaks, such as leafy greens and other types of fresh produce. Another trend has been the contamination of foods not typically associated with foodborne illness, such as peanuts and ice cream.
Litigation is Incentive
Perhaps the most significant message from Bill is the assertion that litigation serves as an incentive for both the government and the industry. To drive home this point, Bill provided several examples of the outcomes of foodborne litigation.
A case against the Peanut Corp. of America for a Salmonella outbreak resulted in 76 federal indictments, including introduction of adulterated food into interstate commerce with intent to defraud or mislead, and conspiracy. A 5-count indictment was handed down in the case against Jensen Farms for an outbreak linked to Listeria in cantaloupe. Although criminal sanctions are rare, they are usually costly. For example, two cases resulted in fines of $11 million and $25 million, respectively.
Advice to Retailers: Plan Against Litigation
In closing, Bill reminded everyone, “The only defense is prevention.”
Bill offered advice to the food executives. Among these were:
- Identify hazards and controls
- Have a well-executed Food Safety Management Plan
- Create a food safety culture throughout the organization
- Know your vendors and suppliers
- Establish relationships with regulators
- Arm yourself with good, current information
- Be proactive
- Make food safety a part of everything you, your suppliers, and your customers do.
As a strong advocate for the value of food safety professionals, I especially liked Bill’s comment that if he ran a food company, he would “have a food safety specialist sitting right outside his door!”