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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

China and Food Safety – What I learned about the US Legal System

From a speech I gave yesterday to the Washington State Bar Association:

A few months ago I was invited by the Chinese Government to speak at a food safety conference in Beijing. A week before I arrived, I was asked not to talk about the now erupting infant formula scandal. I did not oblige.

Later that week, I found myself sitting in the posh lobby of the Beijing Ritz Carlton chatting with a young lawyer who was clearly a first time visitor to the hotel. He was a skinny, 30-something, very serious and earnest, draped in an ill-fitting suit. As we spoke through an interpreter, he occasionally excused himself to take cell phone calls from parents of kids sickened by the melamine-tainted infant formula. He wanted to go to court to force Sanlu (an infant formula company owned jointly by the Chinese Government and a New Zealand Corporation) to pay his clients’ medical bills. He was seeking no fee. He wanted justice, but was being discouraged by the government and his own profession from representing these families. He was frustrated; understandably intimidated, and a bit scared, but kept taking the calls. You might now know that a few lawsuits have been filed on behalf of the nearly 300,000 children sickened. What the Chinese legal system does with them is still unclear.

That conversation—and my entire experience in China—left me rethinking my profession and the role of law and lawyers in a free society. I thought how blessed I am that when a client hires me to prosecute a claim, I seldom think twice who the defendant is. I certainly never worry that the bar association or government will tell me who I can or cannot represent. I never worry that my clients’ or my freedoms could be in jeopardy for making a claim.

Being in China provided me with a fresh appreciation of the fundamental ideals that are the basis for my livelihood, and at the core of the American civil justice system. I was reminded that our precious and potentially precarious system needs to be constantly defended, lest we find ourselves relying solely on the open market or government to keep poison out of our kids’ milk bottles.

In the past couple of years, we’ve seen a series of events that have already changed the crucial relationship between China’s industrialized food economy and the rest of the world—especially the United States. It began when thousands of pets in the US and around the world were sickened by pet food tainted with melamine. More recently, Chinese children have been made ill by infant formula, eggs, and even candy tainted with the same toxic substance.

In the US and around the world, experts and consumers alike were shocked that poison again had been introduced into the food supply. The Chinese government was equally shocked and frightened by the worldwide reaction, as consumers, importers and regulators threaten to enact boycotts of Chinese goods. The Chinese have responded by throwing people in jail and closing down food processing factories. But the problems persist.

In too much of the world, life is all about costs and benefits, opportunities and risks, and tainted products are just one of the risks to be encountered. For many, that’s just the way it is, and they tend to be perplexed by our refusal to accept the same risks. They may have a point. Perhaps it’s true that Americans are becoming less tolerant of life’s dangers. When Americans get sick, they want to know why, and they want to hold somebody accountable.

So how do we manage risk in a free society? For centuries, it was left to the open market. We can choose to trust our farmers and food processors, and buy their products. In a perfect marketplace, if their food made somebody sick, word would spread and people would stop buying their product. The problem today is that in many instances it is difficult, if not impossible, to know whom actually sourced and manufactured the product. It is difficult to hold someone accountable if you really have no idea who made the poisoned product.

From the manufacturer’s perspective in such a complex economy, everybody suffers for the sins of a few. Most farmers and processors will be conscientious and responsible, but a few will get lazy and make mistakes that will hurt innocent people. Think about the recent examples involving tomatoes (or was it peppers) and spinach. In both instances recalls were broad, impacting thousands of farmers and producers, who lost millions. Later, outbreaks and illnesses were traced to just a few farms.

The Big Brother system is another option, where risk is managed by regulation: enacting laws, hiring inspectors, and imposing stiff penalties for violators. That has been the Chinese strategy. If somebody makes a product that makes kids sick, then off with their heads. That system may work for a while, but you can’t hire enough inspectors to cover every farm and processing plant. It’s expensive and inevitably breaks down. Somebody gets lazy or corrupt, or government gets complacent, cuts budgets and the system gets stretched too thin to protect everyone. Then people start getting sick, again.

My message to the Chinese was that there is a third strategy, an approach that employs elements of the free market and of a regulatory system, but relies on a system of civil justice as another means of enforcement. When a defective product injures someone, the injured person can hire a lawyer and seek compensation from the company responsible. Companies under this system know that if they produce defective products, they’re liable to find somebody like me at their door, demanding justice through compensation.

If we do our job as personal injury lawyers, companies will be careful to produce safer, healthier products. It’s not a perfect system. It can be burdened by trivial lawsuits, or, some would argue, excessive jury awards. But I believe it works better than either the free market or Big Brother alone.

Clearly, everything is more complicated in a global marketplace. An American whose child is sickened by Chinese food may not be able to sue the producer directly, but we can sue the company that imported the food and the company that sold it. It may take longer, but the Chinese are learning that the effect is the same. If they want to do business in the American marketplace, they are ultimately subject to American civil law.

And here is this young Chinese lawyer, desperately trying to obtain justice for his clients, and his main obstacle is his own government and his own bar association. How do you go to court when the government owns the offending company? How do you get justice in such a system?

My presentation to the Chinese Food Safety Conference was that civil law is about far more than seeking compensation for individual clients. Civil courts, independent of the ruling party, provide a crucial relief valve for social and political pressure. In a free society, if people feel a product sickened their child, they can seek compensation rather than going into the streets and fomenting social disruption. China’s long history documents one all-powerful dynasty after another, each oblivious to individual rights, and to any concept of civil rights and civil justice, and each eventually overthrown by the next. Maybe, just maybe, a meaningful system of civil courts will help that fast-changing society move closer to an open, democratic system.

Meanwhile, I came home with a new appreciation for our own system, a system we all take for granted. I am more convinced than ever that we, as lawyers, need to recommit ourselves to maintaining and protecting our civil justice system as a mechanism for social change and social stability. Are we pushing the envelope too far, perhaps bringing claims or defenses of dubious legitimacy? Are we feeding the widely held impression that the system exists not for the benefit of the American people, but for the care and feeding of lawyers?

Each of these questions, and many others, should be part of our daily evaluation of our practice. We need to be reminded now and then that lawyers have an obligation not just to our clients, but also to taxpayers and to the founding fathers that laid the groundwork for this system two centuries ago. Working to keep our system strong and balanced can—and will—provide a beacon to other countries that are struggling to get it right.