Liability for Food Frauds - Research Paper Example

of the of the of the Liability for Food Frauds Introduction This research work discusses the problems associated with food fraud, in the context of restaurants in the US. In this regard, legislation pertaining to food safety and protection, negligence, and liability for food adulteration have been taken up for discussion. In addition, the case law pertaining to food safety has been discussed. Moreover, several tests developed by courts for assessing the food fraud liability have been scrutinized. Finally conclusions were arrived at. As such, restaurants should strictly adhere to the food safety regulations, so as to achieve beneficial growth and development. The terms food fraud or economically motivated adulteration have not been defined in the statute of the US. Nevertheless, the Food and Drug Administration (FDA), as part of a public meeting conducted in the year 2009, provided a working definition. The latter described economically motivated adulteration as the fraudulent, intentional substitution or addition of a substance to a product. The objective of such addition to a product being to diminish its production cost or to enhance its apparent value. Several efforts have been made, which are in continuance, to collect contemporary and historical data on food fraud and economically motivated adulteration, by means of databases and repositories (Johnson). The FDA has been duly authorized to monitor the safety of food products. It accomplishes this by inspecting food processing and handling units; and by examining food stuffs, with a view to detecting the presence of chemical, microbial, and physical contaminants. Moreover, the FDA is empowered to approve, regulate, and monitor, directly or indirectly, the safety of ingredients that are added to animal feeds or foods (Schmidt, Archer and Olexa). Furthermore, the FDA is vested with the authority to enforce pesticide residue tolerances prescribed by the Environmental Protection Agency. In addition, it has been made responsible for enforcing the defect action levels with respect to muck found in foods. The FD&CA classifies food as adulterated if it contains an unsafe level of a substance, or if the food had been held, packed, or prepared under conditions that are not sanitary. Food is also deemed to be adulterated, when its manufacture does not comply with the extant Good Manufacturing Practices (Schmidt, Archer and Olexa). Torts Law on Food Safety Several states have adopted § 402A of the Restatement (Second) of Torts. This law renders potentially liable, sellers of unreasonably dangerous food items or beverages for the harm resulting from the consumption of such food or beverages. In addition, the consumer expectation test of this law makes a manufacturer strictly liable for any condition that is unreasonably dangerous to the consumer, and which has not been anticipated by the ultimate consumer (Koth, Lijima and Swisher). Theories of Product Liability Prior to analyzing the different tests that are applied to cases involving the liability of restaurants, it is necessary to scrutinize a few of the important aspects of the theories on product liability. The principle of product liability aims to safeguard bystanders, users, and purchasers that experience injury on account of flawed products (Otera 401). As such, the theories of product liability are negligence, breach of the implied warranty of merchantability, and strict liability. There are important differences between these theories, which can significantly alter the ability of the plaintiff to recover damages (Otera 401). The implied warranty of merchantability emerged from tort law. However, in general, it is codified under contract law. Such warranty is integral to every contract of sale of goods. This warranty obliges the goods sold to be merchantable. It is presumed that the parties to the contract would have consented to this obligation, if they had thought about it (Otera 405). This tends to be akin to strict liability, as the individual who breaches the warranty is rendered liable, even if he had exercised the greatest care. On the other hand, the elements necessary for establishing the warranty have contract law as their basis. Section 2-314 of the Uniform Commercial Code provides a general framework. This is in the context of implied warranty of merchantability and it has been adopted by several states, such as California (Otera 406). As such, this Section enjoins that the following elements have to be established for the plaintiff to recover. First, there should have been a sale of goods, and the mere performance of a service will not suffice. Second, the seller has to be a merchant. Finally, the goods sold have to be merchantable (Otera 406). Upon establishing these elements, the defendant is rendered liable, even if he had exercised the utmost care to avert causing injury The Federal Food, Drug and Cosmetic Act In addition, the Federal Food, Drug and Cosmetic Act (FD&CA) 1938, grants the Food and Drug Administration (FDA) with primary jurisdiction over the prevention of adulteration and misbranding of foods, drugs, and cosmetics sold in interstate commerce. The FD&CA, in general, deems food to be adulterated, whenever it consists of a residue of a chemical, microbial, or physical agent to an extent that is considered to be unsafe (Schmidt, Archer and Olexa). It is feasible to prevent foodborne disease to a considerable extent. This requires the imposition of greater accountability upon all the entities associated with the global food chain. Such accountability and responsibility has to be imposed at every stage of the global chain (U.S. Food and Drug Administration). With the recent changes to the law, the FDA has been provided with several devices that concentrate upon prevention and an unambiguous regulatory framework that facilitates significant improvement to the approach adopted towards food safety. Thus, the FDA has been provided with a legislative mandate to demand comprehensive and prevention based controls to the entire food supply chain. This transpired with the enactment of the Food Safety Modernization Act 2011 (U.S. Food and Drug Administration). Some of the preventive controls are the measures to be adopted by a food facility to avert or substantially reduce the possibility of problems coming to the fore. In addition, the new legislation increases the ability of the FDA to exercise greater supervision over the large number of food products being imported into the US from the other nations of the world (U.S. Food and Drug Administration). The Food Safety Modernization Act The Food Safety Modernization Act had been enacted, with the objective of controlling food fraud. The US President Barack Obama, in the year 2011, signed the Food Safety Modernization Act. This vests the FDA with greater authority to demand higher levels of compliance and testing, with respect to the food chain. There is a greater emphasis upon averting issues, such as foodborne disease, and this represents a transition from the previous emphasis that had concentrated upon reacting to specific problems (Zuckerman). The Food Safety Modernization Act has empowered the FDA to provide better protection to public health by reinforcing the food safety system. This has helped the FDA to concentrate to a much greater extent upon preventing food safety issues, instead of reacting to problems, as and when they arise. Furthermore, the FDA has been furnished with novel enforcement authorities that have been created with the objective of achieving better compliance rates (U.S. Food and Drug Administration). These compliance rates are with respect to the prevention and risk based food safety norms. Moreover, these new enforcement authorities have been equipped to respond more effectively and with greater rapidity to issues. In addition, the law has provided the FDA with several significant devices to scrutinize imported foods by subjecting them to the same standards that are applied to domestic foods. Besides, the FDA has been instructed to construct an integrated national food safety mechanism in collaboration with the state and local authorities (U.S. Food and Drug Administration). In addition, the task of creating a new food safety system that is founded upon prevention, tends to be time taking, and the FDA has embarked upon the creation of a process for achieving this objective. Specific implementation dates have been established in the legislation by Congress. Some of these authorities are to become effective rapidly. One such authority is the FDA’s new authority that has been made responsible for ordering companies to recall food. The other authorities require the FDA to formulate and issue regulations, and to prepare guidance documents. The speed with which the FDA can implement this legislation will be influenced by the funding received by it, which in turn affects the vital operations and staff (U.S. Food and Drug Administration). Food Code The focus of the Food Code is chiefly upon the following areas. Food handling and preparation; equipment and utensils; cleaning and sanitizing; construction and maintenance; compliance procedures; personnel; and services, including pest management, plumbing, sewage, waste disposal, and water. Moreover, the Food Code addresses controls for risk factors and establishes critical public health interventions that are aimed at safeguarding the health of consumers. These interventions are aimed at controlling hands as a vehicle of contamination, demonstration of knowledge, enforcing employee health controls, and implementing time and temperature parameters for controlling pathogens (Arduser and Brown 58). Case Law Some of the more important decisions regarding negligent food supplies by restaurants, have been discussed in the sequel. The courts had relied upon two tests, until 1973, to determine whether food sold had been devoid of merchantability or had been flawed, these tests were the reasonable expectation test and the foreign-natural test. With the 1973 Louisiana Court of Appeal ruling in Loyacano v Continental Insurance Co, these tests were amalgamated and a new test was created. However, the majority of the state judiciaries applied either the reasonable expectation test or the foreign-natural test (Otera 408). In Deris v Finest Foods, the plaintiff chewed glass pieces that were present in the banana split that she was eating. The defendant was held liable, on the basis of the Louisiana rules of warranty (Crawford 334). It has remained unclear, whether a vendor of foodstuffs who is not the manufacturer of the same, will always be liable. Similarly, in Gilbert v John Gendusa Bakery Inc, a young boy who had purchased packed doughnuts from the defendant was permitted to recover damages from the latter. He had fallen ill, due to the presence of foreign matter in these doughnuts, which he had consumed (Madison 271). Nevertheless, in McCauley v Manda Brothers Provisions Co, the court did not allow the plaintiff to claim from the defendant. This was on the grounds that the defendant was unaware of the defect in the sandwich sold by him to the plaintiff, which had resulted in the harm. Furthermore, the courts had utilized the devices of tort law, in addition to implied warranty, to hold a seller of food liable. In fact, some of the courts had gone to the extent of imposing strict liability upon foodstuff vendors, albeit cloaking their decisions in the garb of negligence (Madison 271). The courts employ the foreign-natural test to differentiate between injuries that result from contaminated food and injuries caused by a substance that is natural to the food item that had been purchased. According to this test, no liability can be imposed for injuries caused by substances that are natural to the food item sold. In one instance, the court ruled that bones occur naturally in a particular variety of meat. Hence, these bones could not be regarded as foreign, and it was up to the consumer to be cautious against their presence (Bassett, DeVault and Green). The courts, while applying the reasonable expectation test, ascertain what the consumer reasonably presumes to be present in the food that he is served. In this test, the courts do not look for what could possibly occur naturally in such food. In one instance, the court ruled that the plaintiff was entitled to recover damages for the injury caused to him due to the presence of a chicken bone in a sandwich. The court also ruled that it was the task of the jury to determine the reasonableness or otherwise of the expectations of the consumer (Bassett, DeVault and Green). Mix v Ingersoll Candy Co has generally been regarded as the origin of the natural to the basic object test. The plaintiff in this case, sustained an injury due to the presence of a chicken bone in a chicken dish. The court held that the defendant was not liable under negligence or implied warranty as it was natural to find a chicken bone in the chicken pie. As a consequence, the plaintiff should have anticipated the presence of the bone and taken suitable precautions. Significantly, the ruling in this case demonstrated that the court did not rely exclusively on the naturalness principle (McCarty 248). In addition to the naturalness principle, the court took into consideration, whether such bones could be envisaged and guarded against. Moreover, in Goodwin v Country Club of Peoria, the court declared that individuals consuming meat, fish or fowl had to expect the presence of pieces of bone (McCarty 249). Such rulings make it very clear that the courts accord considerable significance to the principle of naturalness and include the issue of anticipation, which is frequently employed as a supporting argument. Food Defense The safety of the food infrastructure of the US is protected to a major extent, by the food industry. The Food Defense 101 course imparts training that prepares the recipients against deliberate attacks against the food supply of the nation. A major feature of this course is the provision of guidance and understanding for creating a Food Defense Plan that is founded on a pragmatic approach (U.S. Food and Drug Administration). The components of the Food Defense 101 are; Food Defense Awareness for the Food Professional; Food Defense Regulations; Food Defense Awareness for the Front-line Employee; and ALERT for food owners and operators of food facilities. These courses are aimed at stimulating discussion regarding food defense in the food industry (U.S. Food and Drug Administration). In addition, the FDA has been adopting a number of measures to improve food protection. One of these is the Employees FIRST initiative, which can be incorporated by the managers of the food industry in their current employee food defense training programs. This program provides information to front-line food industry workers, from the level of the farm or source to that of the table or destination. The information provided pertains to the dangers inherent in international food contamination and the responses to be taken, in order to identify and mitigate such risks (U.S. Food and Drug Administration). A few of the actions to be undertaken by employees are enumerated below. First, strictly adhere to the food defense plan and procedure of the company. Second, thoroughly scrutinize the work and surrounding areas. Third, identify anything that is extraordinary. Fourth, safeguard all finished products, supplies and ingredients. Fifth, invariably inform the company’s management about unusual or suspicious objects or developments (U.S. Food and Drug Administration). Conclusion In the US, several statutes are in place for controlling the quality of food provided in restaurants and food outlets. Obviously, restaurants are likely to envisage legal problems arising from customer claims, if they fail to ensure food quality and safety. The above discussion examined the tests established by the courts for assessing liability of food suppliers. In addition, a novel concept of the Food Defense course, promoted by the FDA has also been analyzed. This strategy helps restaurants to circumvent unexpected threats to their operations. Hence, restaurants should adhere to the Food Defense plan and remain alert to the developments in their surroundings, irrespective of whether they are located within the nation or in some foreign country. The restaurants should follow the food safety regulations, strictly, in order to gain a competitive advantage and to develop in an unblemished manner. Works Cited Arduser , Lora and Douglas Robert Brown. HACCP and Sanitation in Restaurants and Food Service Operations . Ocala, FL, USA: Atlantic Publishing Company, 2005. Print. Bassett, Mike H, Haley L DeVault and Bryan A Green. Meeting the Challenges of Foodborne Illness Liability Claims. 2009. Web. 20 November 2014. . Crawford, William E. "Private Law: Torts." Louisiana Law Review 28.3 (1967): 334-339. Print. Deris v Finest Foods. No. 198 So.2d 412. Court of Appeal of Louisiana, Fourth Circuit. 1 May 1967. Food Safety Modernization Act. Washington, DC: 111th United States Congress, 4 January 2011. Gilbert v John Gendusa Bakery Inc. No. 144 So.2d 760. Court of Appeal of Louisiana, Fourth Circuit. 17 September 1962. Goodwin v Country Club of Peoria. No. 323 Ill App 1. Illinois Supreme Court. 1944. Johnson, Renée . Food Fraud and “Economically Motivated Adulteration” of Food and Food Ingredients. Washington, DC, USA: Congressional Research Service, 2014. Print. Koth, Amber R, et al. Case Law And Statutes On A State-By-State Basis For Claims Relating To Food Liability. 15 January 2010. Web. 20 November 2014. . Loyacano v Continental Insurance Co. No. 283 So 2d 302. Louisiana Court of Appeal. 1973. Madison, John M. "Defective Products - Vendors Liability." Louisiana Law Review 28.2 (1968): 270-275. Print. McCarty, William E. "Sales: Implied Warranty and Sale of Chicken Sandwich." Marquette Law Review 44.2 (1960): 247-252. Print. McCauley v Manda Brothers Provisions Co. No. 211 So.2d 637. Supreme Court of Louisiana. 28 June 1968. Mix v Ingersoll Candy Co . No. 6 Cal 2d 674. California Supreme Court. 20 July 1978. Otera, Richard H. "A Bone to Pick with Mexicali Rose v. Superior Court: Liability of California Restaurants for Injuries Caused by Substances in Food." Loyola of Los Angeles Law Review 27.15 (1993): 397-433. Print. Schmidt, Ronald H, Douglas L Archer and M T Olexa. "Federal Regulation of the Food Industry: Part 2, Federal Regulatory Agencies." February 2013. EDIS. Web. 21 November 2014. . U.S. Food and Drug Administration. "Background on the FDA Food Safety Modernization Act (FSMA)." 5 August 2014. Web. 21 November 2014. . —. "Employees FIRST." 17 June 2014. Web. 21 November 2014. . —. "Food Defense 101 (including ALERT)." 12 June 2014. Web. 21 November 2014. —. "Food Safety Modernization Act (FSMA)." 19 September 2014. Web. 21 November 2014. Zuckerman, Catherine. "Food Fraud: Labels on What We Eat Often Mislead." 12 July 2013. National Geographic. Web. 21 November 2014. . Read More