Wednesday 24 January 2018

Townsend Farms – Where Does the Liability Lie

As many know Townsend Farms of Oregon is recalling an organic frozen berry mixed linked to a Hepatitis A outbreak. The berries were sold by Costco and are under an active recall by both the farmer and the retailer. This is a serious outbreak, but it raises the question of where liability should lie – with Townsend, Costco or another supplier? Answers to these questions will likely fill the bulk of defense and plaintiff’s counsel time. The question is all the more interesting with Townsend.

First, there is no screening for Hepatitis A in any produce other than green onions (see ABC’s report). Subsequent testing of the berries using the green onion method returned negative. There simply was no way for Townsend to know in advance the berries were tainted. This is unlike other outbreaks involving E. Coli or Salmonella for example. Plaintiff’s counsel will need to find another branch to hang liability on absent a strict liability standard, because the farm did not omit or overlook any safety requirement or activity.

Second, the farm appears to operate a sterling plant. Unlike other outbreaks, like the GA peanut outbreak, Townsend appears to run a compliant facility. Outbreaks involve heavy FDA scrutiny. The FDA spent five days combing through the Townsend operation. A similar investigation follows every outbreak and typically will shed some light on what the source of the outbreak likely was. Preliminary reports indicate the source was not Townsend’s plant. If the facility can sustain the full scrutiny of a FDA investigation it will be interesting to see how liability or fault will be established. This is because typically a FDA citation for a GMP infraction or records collected during the investigation play a central role, if not the most pivotal role, in a plaintiff’s outbreak case. Initial reports indicate that will likely not be the case here.

Liability likely rests overseas. The ABC report and others indicate the strain of Hepatitis A is not commonly found in the US. The virus strain that affected two consumers is common in the Middle East, where pomegranate seeds from Turkey were supplied for the berry blend. The FDA will have authority to inspect the facility in Turkey. If the facility is compliant, like Townsend facility, the plaintiff’s case will be terribly weakened. If, however, it is filled with compliance issues that contributed to the contamination the question for Townsend is whether there was a legal responsibility to qualify its supplier. This is an area of food law in flux. Changes under the Food Safety Modernization Act which is not yet law suggests suppliers should be qualified. Assuming Townsend was under an obligation to qualify its supplier, in this case the facility in Turkey, this does not necessarily mean constant monitoring. Typically qualifying a supplier simply means verifying the supplier is compliant, entering into an agreement stipulating the facility will continue to use good manufacturing practices, and occasionally auditing for compliance. A nuanced issue for sure, one may all the more complicated the the currently regulatory scheme, and the lack of any test for Hepatitis A.

This post while focusing on the technical route for liability under the Food Drug and Cosmetic Act may come across as cold. No doubt the victims did not expect to get sick from eating berries and have measurable losses that arise from their illnesses. This should not be marginalized. The ethics of the scenario are quite different than the legal obligations. All of which combine to ask – is there any way to eliminate all risk from eating food and if not under our legal system who should be liable if we do get sick. There is no way to eliminate all the risk, but risks that are unnecessarily added to the food chain deserve recourse. In the coming days we will get an answer to whether Townsend or its suppliers added unnecessary risk.

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