Mitigating Against Significant Food Liability Claims: Safe Food Handling Is Not Enough
A perfect storm may be brewing. The food industry may be in for a rough time ahead as it faces increased exposure to liability from foodborne pathogens.
Dangerous pathogens are evolving quickly. Listeria, for example, already a very virulent bug, hospitalizing approximately 2,500 in 2006 and killing 20 percent (500) of those sickened, has learned to survive modern food-handling procedures and seems to be growing deadlier.
For food producers and sellers, the news grows grimmer. Improvements in microbiological detection techniques and a prevailing regime of strict liability are creating a boom for food liability lawyers. Public health officials can detect outbreaks that were previously undetectable. Many states subject food sellers to strict liability. No matter the fault of a food producer or seller, or even its ability (or lack thereof) to prevent a pathogen from entering the food stream, the entity can be held liable and its image marked with the 21st century equivalent of the scarlet letter.
Detection of Foodborne Pathogens Is on the Rise
The Centers for Disease Control and Prevention (CDC) reports that every foodborne disease (save one) in its active surveillance network has been on the rise over the last few years. As illustrated in the graph below, through 2006, incidents of vibrio, salmonella, Listeria, and E. coli O157:H7 are on the rise (campylobacter is the only pathogen not trending upward, but campylobacter is also not associated with outbreaks, and thus is unlikely to be a major source of liability).
FIGURE 1. Relative rates compared with 1996-98 baseline period of laboratory-diagnosed cases of infection with campylobacter, STEC* O157, Listeria, salmonella and vibrio, by year—Foodborne Diseases Active Surveillance Network, United States, 1996-2006
Vibrio, or vibrio vulnificus, normally lives in warm seawater, according to the CDC. Vibrio can cause disease in those who eat contaminated seafood or have an open wound that is exposed to seawater. In healthy people, ingestion of vibrio can cause vomiting, diarrhea, and abdominal pain. In immunocompromised people, particularly those with chronic liver disease, vibrio can infect the bloodstream, causing a severe and life-threatening illness. The CDC estimates that vibrio bloodstream infections are underreported and fatal about 50 percent of the time.
E. coli O157:H7 is one of hundreds of strains of the bacterium Escherichia coli. Although most strains are harmless, this strain produces a powerful Shiga toxin that can cause severe illness. E. coli O157:H7 infection often causes severe bloody diarrhea and abdominal cramps. Usually the illness resolves in five to 10 days. In some people, particularly children under five and the elderly, the infection can also cause a complication called hemolytic uremic syndrome (HUS), in which the red blood cells are destroyed and the kidneys fail. HUS is the principal cause of acute kidney failure in children, and most cases of HUS are caused by E. coli O157:H7.
Salmonella bacteria live in the intestines of many food animals, such as cows and chickens. Most people infected with salmonella develop diarrhea, fever, and abdominal cramps 12 to 72 hours after infection. Infection is usually diagnosed by culture of a stool sample. The illness usually lasts four to seven days, and most people recover without treatment. Infants, elderly people, and people with impaired immune systems are more likely than others to develop severe illness from salmonella.
Listeriosis (or listeria) is a serious infection caused by eating food contaminated with the bacterium Listeria monocytogenes. The disease affects primarily pregnant women, newborns, and adults with weakened immune systems. Listeria is killed by pasteurization and cooking; however, in certain ready-to-eat foods such as hot dogs and deli meats, contamination may occur after cooking but before packaging. As described above, according to the CDC, listeria kills 20 percent of those hospitalized as a result of the disease—more than any other foodborne pathogen.
The CDC’s published active surveillance does not list what can be called emerging pathogens. For example, it does not describe the impact of non-O157:H7 strains of Shiga-toxin-producing E. coli. In Europe, and increasingly in the United States, non-O157:H7 strains are beginning to overtake O157:H7 as a major health concern. These strains include serogroups known as O26, O45, O103, O111, O121, and O145. It is believed that these other strains account for a large number of foodborne illnesses, but little research has been done. Public health officials assume that the non-O157:H7 strains will behave like and cause health effects similar to those caused by O157:H7, but no one is sure. Anecdotal evidence suggests that these other strains may affect a broader range of the population and, in general, behave in very different ways.
The CDC also does not tell us the prevalence of variant Creutzfeldt-Jakob disease (vCJD), or what is better known as the human version of mad cow disease (bovine spongiform encephalopathy (BSE)). This is believed to be a very serious condition characterized by abnormal prion protein that clumps together and accumulates in brain tissue. The result is progressive brain damage and death. vCJD is believed to be caused by ingesting BSE-infected spinal or brain tissue from cattle. The first documented incident in the United States of a cow testing positive for BSE, in which the meat entered the human food chain, occurred in 2003. No such incidents have been documented since. However, prion-related diseases are not yet well understood.
Darwinian Evolution: Bugs Are Adapting to Sanitary Practices and Becoming More Virulent
Foodborne pathogens resemble an ever-adapting insurgency. As more regulations are imposed to improve food handling to protect the public, the bugs adapt and, seemingly, stay a step ahead. As these pathogens evolve, many experts believe they step up their virulence, becoming evermore dangerous.
Most scientists agree that foodborne pathogens are evolving quickly. Some pathogens, such as Listeria and E. coli O157:H7, which have been around for many years, are altering themselves genetically on a rapid basis. E. coli O157:H7, for example, evolves so quickly that its genetic makeup often changes significantly between the time it is ingested by a person and the time the person sheds the bug in a stool.
Many scientists also believe that food plant sanitation and food preservation practices enrich populations of pathogens that can easily spread. It is an example of Darwinian survival of the fittest: bugs that survive human attempts at sanitation are more able to resist human attempts at sanitation.
Pathogens that survive are also thought to be more physiologically fit. Microbiologists examining the genomes of these pathogens have discovered that often the same circuitry that allows the bugs to survive human sanitation efforts control the bug’s virulence. For example, those mapping the genome of Listeria have discovered that the same gene that helps it adapt to refrigeration and other food sanitization and preservation techniques also increases the bug’s virulence.
As scary as this kind of evolution appears, there are no systematic studies between practices in the food production environment and evolution of foodborne pathogens. Although new food sanitation techniques are being developed rapidly, science cannot predict their long-term effects. For example, recent news concerning Listeria control has been centered around “phage” sprays. However, the industry has no idea how Listeria may adapt. Will this solution remove Listeria from deli meats or make things worse?
Better Detection Techniques Mean More Documented Outbreaks
As discussed above, foodborne illness is on the rise, new pathogens are arising, and old bugs are evolving rapidly. And, as if this weren’t rough enough on the food industry, technology for detecting pathogens and linking illness to food is also improving rapidly.
For example, non-O157:H7 strains of E. coli that would have gone undetected just a few years ago are now being detected by some public health departments. It is only in the last year or two that some public health department laboratories became capable of screening for strains of non-O157:H7 strains of E. coli. The result is that outbreaks of non-O157:H7, such as those involving serogroups O26, O45, O103, O111, O121, or O145, which previously would have gone either unnoticed or without resolution as to source, are being discovered, solved, and linked to their sources. The upshot for the food industry is that even without an increase in incidents of foodborne pathogens, that exposure will continue to rise.
Confirmed vCJD incidences, which are now nearly nonexistent in the United States, may also increase with the development of the ability to detect vCJD in human beings. Today, the only way to confirm vCJD in a human being is following death, by doing an autopsy on the brain. According to the CDC and the National Institute of Allergy and Infectious Diseases, considerable research is ongoing to understand prion diseases such as vCJD in humans and BSE in cattle. It is only a matter of time before enough is understood about these diseases to develop more effective detection techniques. Once that happens, claims of exposure to BSE and vCJD, now almost impossible to prosecute, could become common.
Strict Liability and Mitigating the Risks
Most states impose strict liability on those preparing food, including restaurants, institutions, manufacturers, growers, and supermarkets (to the extent they further package or process). See Neil E. Hard, Agricultural Law, pt. 2, ch. 7, Agricultural Law § 7 (2005). No matter how much care these entities take to handle food safely, liability is often imposed without regard to fault.
For example, certain strains of E. coli cannot be washed out of leafy greens. An institution that served the leafy greens, even when it is undisputed that the greens were well washed and handled as safely as possible, may be liable. As explained above, the odds of this kind of liability are only increasing, even for the most cautious of food sellers.
The best way a food seller can mitigate risk is to shift the risk. It should use whatever bargaining power it has with its vendors and suppliers to negotiate promises of indemnification and additional insurance. Careful drafting of these clauses and selecting the appropriate controlling law are critical. The wrong choice of words can cause an indemnity clause to become almost meaningless. For a food seller with brand and public image at stake, it is crucial when shifting the risk, whether to a vendor, supplier, or insurer, that it maintain the ability to select counsel and direct litigation. Frequently, an insurer or other third party’s interest in minimizing economic loss conflicts with the insured’s need to protect a brand and image.
Finally, having a crisis management team in place before a crisis happens is critical for any food seller. The moment an outbreak occurs, a food seller should have a team that includes, at the very least, experts in food safety, epidemiology, public relations, and law ready to work with the public health department, respond to press inquiries, and help formulate a strategy to minimize exposure. For example, assisting the health department to conduct a thorough investigation (more often than not, it does not) can mean the difference between a finger pointed at one source over another. The reaction of the press and the public in the hours that follow an outbreak will affect the short- and long-term outlook for an entity’s image and brand.
Kenneth Odza is a principal in Stoel Rives’ Litigation practice group and chair of the firm’s product liability initiative. Ken’s primary focus is on legal issues related to emerging foodborne pathogens, food liability and public policy claims involving food. He can be reached at firstname.lastname@example.org or 206-386-7595.