How not to let food safety liability risk ruin your appetite

By:Peggy Kirk Hall, , Associate Professor, Agricultural & Resource Law , Associate Professor, Agricultural & Resource Law Wednesday, November 27th, 2019

Food is likely on the minds of many people as we head into the holiday season.  Being an agricultural attorney, it’s hard to think about food without also worrying about food product liability.  Whether growing turkey or romaine lettuce, producing food for human consumption is a risk-laden endeavor that can lead to legal liability for a farmer.  That’s why knowing and following Good Agricultural Practices (GAPs) is imperative for farmers who raise produce, eggs, meats, and other foods for direct human consumption.  Employing those production practices is critical to producing a safe food product.   But what if a food isn’t safe and causes illness or death?   

No one wants to believe their food product would harm someone or that their customers would sue them for such harm.  But it’s a reality that food producers must face.  I’ve recently had the pleasure of working with farmers in OSU’s Urban Master Farmers Program and OEFFA’s Begin Farming Program who are taking these risks to heart and learning not only about GAPs, but also about other tools that address food product liability risk.  Teaching these producers has reminded me of how important it is to remind all producers about these tools.  So here’s a rundown on four important food product liability tools:

  1. Management practices.  In addition to using production practices such as GAPs, a producer’s management practices can also manage food liability risk.  Thorough employee training, for instance, ensures that everyone is following GAPs and other risk management procedures.  Documentation of production procedures can be useful evidence when determining liability for a food product.  Keeping records of such documentation along with other records such as sales and training records can help inform what caused the incident and whether it can be traced to a producer’s product.  Regulatory compliance, such as following Ohio’s Uniform Food Safety Code, might also be necessary, depending upon the food product.  Each of these management practices feed into a solid risk management plan.  This requires a producer to engage in continuing education.
  2. Insurance.  An insurance policy can be an excellent way to manage food safety liability risk.  But to obtain adequate insurance coverage, a producer should review all food products and food sales activities with an insurance professional.  A farm’s standard liability policy might offer adequate coverage for the foods and food sales activities.  Alternatively, a producer may need to add an endorsement or “rider” or obtain a separate commercial food product liability policy.  The goal is to ensure coverage for medical and related costs if someone contracts a food borne illness from a particular food product sold in a particular way.  It’s also important to revisit the insurance coverage when taking on a new activity or creating a new food product.  Doing so will ensure maximum protection and reduce the possibility that an incident is not covered. 
  3. Recall insurance and planning.  A producer who sells a sizeable quantity of food products through a number of sources or a food broker may need to consider recall insurance.  This type of policy will kick in when a food product must be recalled because it has been identified as a food safety risk.  It can help cover the costs of notifying the public about the product and removing the product from stores, institutions and consumers.  Likewise, having a detailed recall plan can minimize such costs by ensuring that the recall process is responsive, efficient and effective.
  4. Business entity formation.  “Do I need an LLC?” is a common question we receive, and the answer is usually “it depends.”  Organizing as a Limited Liability Company (LLC) or Corporation won’t prevent a producer’s liability, but it can limit the liability to the assets of the business.  An LLC, for example, contains a producer’s business assets and separates them from the producer’s personal assets, such as a home.  If there is a legal liability incident, the LLC assets would be subject to that liability.  It would be difficult for someone to get beyond the LLC and into the producer's personal assets.  The LLC doesn't relieve the producer from liability, but it can safeguard those personal assets.

Talking about legal liability has a way of ruining one’s appetite, but hopefully that won’t stop food producers from thinking seriously about food product liability risk.  The good news is that like most liability exposure areas, tools can help minimize liability risks for our food producers.  Using those tools might just help settle our worries about food product liability.

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