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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Strict Product Liability – Question of the Night?

Which multi-billion dollar company raised this defense in response to a recent lawsuit where the consumer ate its product?

Under what circumstances should a consumer be held responsible when the purchased food product contains a bacteria or virus?  Should the parent?  Should the child?

  • Doc raymond

    Way too easy . Nebraska Beef.

  • Doc raymond

    Way too easy I think. Nebraska Beef?

  • Rhiannon

    What about products that every reasonable person would cook? Like frozen chicken pot pies?

  • Marymary

    I’m in favor of strict liability in foodborne illness lawsuits for a number of reasons, including its potential to be a warning to other food manufacturers, distributors, and retail food services. Basically, strict liability reinforces how important it is to keep contaminated food from entering the stream of commerce.
    Even in situations where strict liability wouldn’t apply and negligence is the standard, I would question contributory negligence on the part of the consumer as an appropriate defense. In many instances of foodborne illness there is nothing that the consumer could have done to prevent illness other than not eating the food in question. Can a defendant honestly assert, “You ate the food, therefore you were negligent”?
    By the way, is it Nestle making that assertion?

  • I admit I have a bias – that that folks that poison consumers should be responsible for allowing bacteria and virus in our food:
    Also, you might find these links to a very complete article on the pot pie cooking issue:

  • Melanie

    I’m just a regular consumer but I think contributory negligence should be a factor. Even my 3 year old knows to be super careful around uncooked eggs and meat. What we hear in the media never seems to distinguish between people getting sick doing really questionable things (e.g. drinking raw milk from dirty source) and things that ought to be okay (e.g. leafy greens that are clearly labeled washed & ready to eat).
    In my mind, the Nestle cookie dough falls in the category of people shouldn’t have been eating it raw. Ground beef should not be so toxic that just opening the package creates germs but it is reasonable to expect people to clean all surfaces touched by raw meat before and after.

  • Re: Cookie Dough. Consumer Reports shows that some 40% of the cooks eat it raw:
    I can see where raw eggs with Salmonella might be a risk (Nestle pasteurized eggs), but E. coli O157:H7?

  • Melanie

    People are stupid but you can’t blame the manufacturers for that. I’ve been known to stand on the top of a ladder but I wouldn’t blame the manufacturer if I fell. We also have a toddler trampoline and believe it has helped her a lot developmentally. I know many children are hurt on trampolines but feel the benefits outweigh the risks for our family. We also try to be aware of what the risks are and to mitigate them where feasible.
    E. coli O157:H7 is just plain evil and I think everyone needs to share responsibility for avoiding it. Everyone along the chain needs to do what they can to avoid it. If someone along the chain violates good practices, then they should be penalized for the violation.
    I am struggling with this now though because we’ve decided to start our dog on a raw diet. We pay more for her food in the hope it is less likely to be contaminated and our daughter knows not to touch anything that has had raw meat on it. I know there are risks in this but I don’t want our food system so regulated that I don’t have this option. I also believe people should be able to buy raw milk but I wouldn’t have it in my house.

  • Tony

    The manufacturer/supplier has to provide safe food, how many people know the very basics of food safety?
    How many households have:
    1)Different colored cutting boards to prevent cross contamination
    2)Thermometer to check temps
    3)How many consumers actually cook food as per label directions/then verify temp with a thermometer?
    Food quiz-how many consumers would know the answers, or do any of these activities?
    If a consumer happens to have a preference for soft boiled eggs…..or undercooked meat…..

  • Marymary

    So, was it Nestle, or can you say? :)
    Problem is, some of those people who became ill may not have eaten the cookie dough raw. They may have undercooked the dough slightly, which is a fairly common practice. They may have done what they thought was fully cooking the dough, only to find out that they did not kill the E. Coli O157:Hy. They may have inadvertently contaminated surfaces in their kitchens. We don’t know the facts, yet some are assuming that consumer contributory negligence.
    And I can tell you from experience, most ordinary consumers, no matter how highly educated, know very little about food safety and sanitation. How many of you know that it is not safe to leave cut melons and cut raw tomatoes out at room temperature? How many of you think that you can tell when food is unsafe by its look, taste, smell, or feel? How many of you know that listeria monocytogenes actually grows in a cold, refrigerated environment? Keeping your milk cold won’t help you if there is listeria present. How many of you think that you can tell by the apparent cleanliness of the facilities whether raw milk is safe to drink? I don’t want to sound harsh, but food safety issues are a lot more complex than “Don’t eat raw cookie dough” and “Clean up after handling raw meat.”

  • Marymary

    Looks as if Tony and I posted almost the same thing! :)