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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Justice for Victims of the Chinese Powder Milk Crisis Means Safety for Consumers – Guest Blogger Alex B. Ferguson

On September 12, 2008, the Chinese government officially announced that China’s powdered milk supply was experiencing a contamination problem. An initial recall, announced the same day, of over 700 tons of infant formula signaled to the world that this was no minor incident. Even so, few people would have imagined that we would sit here today, three months later, with over 294,000 Chinese infants sickened by the crisis and many still in serious condition.

The most troubling aspect of the Chinese powdered milk crisis, aside from the well over one quarter million children it has thus far affected, is the fact that the powdered milk appears to have been very deliberately contaminated, not by bioterrorists or a militant group, but by multi-million dollar dairy companies looking to boost their profit margins. The contaminant, melamine, is an industrial chemical used to make adhesives. It also just so happens that melamine’s high nitrogen content is able to offset the nitrogen imbalance usually apparent in diluted powdered milk, thus fooling protein content tests.

Although public outrage has ensued around the world and over 50 countries have banned Chinese dairy imports, the Chinese government remains reluctant to help its own people. Sure, the government has promised to pay victims’ medical bills (that is, if your child was sickened after the announcement of the recall). Sure, the government has arrested the former chairwoman of Sanlu, the company most egregiously at fault in the crisis. But, there remains one thing the Chinese government has not done; the government has not ensured the world that Chinese companies will no longer be able to turn a profit by diluting their products with poison.

This last shortcoming is where China’s recent embrace of industry differs from America’s established corporate culture. Due to legal liabilities, and, dare I say, the dreaded trial lawyer, American companies have an economic incentive not to harm their customers. If they do, they face hundreds of millions of dollars in law suits. China has the laws and the courts, but they do not have a government that is willing to let the courts do their job.

In the aftermath of the powdered milk crisis, an army of Chinese lawyers volunteered their services to help the victims. They talked to the families of victims, braved threats from government officials, filed suits, and waited. The government, however, has thus far been unwilling to give the victims of the crisis their day in court.

Whether the victims of the powdered milk crisis were to win their lawsuits or not, the mere act of the Chinese government allowing the judiciary to do its job is what the rest of the world needs. After all, we, as the world, are China’s customers and we, as customers, should rightfully be concerned about the safety of the products we purchase. Advances in product safety are not going to be realized through criminal charges against a CEO, nor will they be realized through promises to pay medical bills. Safety, in a for-profit world, will only come to fruition when it becomes economically advantageous to make safe products. America realized this one hundred years ago, now its China’s turn. The victims of the powdered milk crisis need their day in court and we, as purchasers of Chinese products, need the victims to have their day in court as well.

Alex B. Ferguson – 3L Extraordinaire

You can read my full discussion of the 2008 powered milk crisis and the Chinese government’s reaction to it here – "Justice for Victims of the Chinese Powder Milk Crisis Means Safety for Consumers"