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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

China needs a few good lawyers

WILLIAM D. MARLER
GUEST COLUMNIST

Tainted pet food. Toothpaste laced with antifreeze. Toys coated with lead paint. Judging by the news reports, one might conclude the Chinese economic boom is about to collapse of its own weight.

Or, as Chi-Dooh Li concluded in Sunday’s Focus (“In trade, China’s moral compass is off course”), to veer off into some sort of amoral oblivion, where the safety of food and other products is blithely sacrificed at the altar of the Free Market and the Almighty Dollar.

But maybe not. Perhaps all China needs is a few good lawyers, and a body of civil law.

I thought of this earlier this month, as my cab inched through downtown Beijing, taking me to China’s first International Food Safety and Quality Conference.

Nothing could have prepared me for what I saw. My car was virtually frozen in traffic, leaving ample time to gawk at the rising skyscrapers, stretching as far as the smoke-filled air allowed me to see. My hotel was a gaudy parody of a Las Vegas casino. Yet, just a block away was a hootong, one of the bleak, yet clean and serviceable residential communities carefully fenced off from prying tourist eyes.

Nothing, it seems, is left of the Maoist society I studied in college 30 years ago, a point driven home when I strolled past a Porsche dealership a few blocks away from Mao’s tomb facing the Forbidden City.

As a lawyer who represents people sickened by food-borne illness, I had bought my way into being asked to speak to the conference hastily organized in the wake of the epidemic of unsafe products traced to Chinese factories. The Chinese are clearly baffled and nervous about what has become an international health scare and public relations nightmare.

The Chinese government responded by executing its top food-safety official, a solution that, to a lawyer who has dealt with scores of such bureaucrats, sounds a bit tempting. But I was there, along with officials from the U.S. Food and Drug Administration and the World Health Organization, to suggest some less drastic solutions.

Clearly, China has a big problem. But how big? Pets died after eating melamine-contaminated dog and cat food. But China is merely joining the club. Corporate America has been killing Americans — and their pets — for generations. Where was the conscience of Jack in the Box over a decade ago when it chose to undercook its hamburgers and sickened hundreds with E. coli? Where was Con Agra’s moral compass in 2002 when it sickened dozens more by distributing tainted ground beef? Did Odwalla lose sleep over the death of a 2-year-old in 1996? Last year, hundreds were sickened, five died and dozens were left with lifelong kidney problems after eating contaminated spinach. And, guess what? The Chinese had nothing to do with any of this.

Killing regulators will not make food any safer, I told the mostly Chinese audience. Tougher laws and inspections may help, but not by themselves. If consumers are injured by a product, the consequences must fall on those who made it. And, for that, Americans rely on a body of civil law.

The Chinese were clearly puzzled by this. They understand the power of government, and the concept of criminal law. But they do not understand how one person can stand up to a rich corporation and say: “You made my child sick, and you are going to have to make it right.”

I explained how our civil laws work. A Chinese company manufactures a product, or a component part of anything from dog food to automobiles or toy parts, and sends if off to Wal-Mart. The product proves to be tainted or faulty. A consumer is injured, and files suit against Wal-Mart, demanding compensation. A court awards damages, and Wal-Mart looks to the Chinese manufacturer, and demands accountability. Their message: China can make things cheaper, but they have to be safe. Lawsuits may make products more expensive, and both American and Chinese firms risk losing business.

Faced with the risk of another product failure, and another lawsuit, the U.S. importer will look for a more reliable manufacturer.

So, I told the Chinese, the issue is not social justice or morality. The issue is something they can understand much more easily — the bottom line. I could see heads nodding across the room. Ohhhhh, so it is ultimately about making the sale or not making the sale! This they understood.

Whether they operate in China, America or Mars, corporations may talk publicly about their corporate conscience. But back in the boardrooms, the discussion will revert inevitably to the bottom line. They are far more motivated by the ugly prospect of being whacked by somebody like me. A few sick kids may be a minor cost of doing business, but a few civil lawsuits cut into profits.

Too cynical? Maybe. But motives matter less than results. If corporations make the right decisions to make safe products, does it really matter why?

At this point, it is difficult to imagine China developing a body of civil law. It does not seem to mix well with an authoritarian society. Their impulse remains: “Kill the regulator.”

But, when it comes to exports, China is learning that its manufacturers are indirectly accountable to our system of civil justice. Once they understand that, they will have to play by the rules. Not because they are moral or immoral. But because they are motivated by the same raw, rational impulse as our corporations. They want to make money. And they will make more if they are not harassed by a bunch of lawyers representing sick kids.

  • Cubswin

    Bill, I think you grossly underestimate how serious a problem this is. China was responsible for a bevy of health crises in a matter of weeks, and it was shocking how far their reach was. Wal-Mart receives 70% of its goods from China, so when a Chinese factory cuts corners millions of Americans are endangered. I think the responsibility on this really has to fall on Wal-Mart. Wal-Mart is passing on risk as well as savings. Check out this video that outlines the China-Wal-Mart relationship: http://youtube.com/watch?v=Nx2ltoqyrEw