The Wall Street Journal is reporting this morning that many food companies are not complying with federal recordkeeping requirements.  The requirements, encoded in a 2002 bioterrorism law, are intended to provide the basis for "traceback" upon the discovery of contaminated foods. In other words, the records are designed to enable public health and safety officials to determine the source of a contaminated food product. The WSJ reports that 60% of those facilities surveyed are not keeping the records. It also reported that a "watchdog agency also tried to trace 40 items such as fresh tomatoes, whole milk, oatmeal and yogurt from retail stores to the farm where they were grown, but could do so for only five items."

This blog regularly catalogs the negative end results for consumers when traceback cannot be quickly and successfully completed – outbreaks of foodborne illness spread and linger while thousands are sickened or killed. Ironically though, the failure of the industry to properly track the U.S. food supply also causes great damage to the industry itself.

First of all, the inability to quickly and accurately identify the true source of a foodborne outbreak can implicate corporations, or even an entire sector of the food industry, that ultimately have no connection to the culprit. Last summer’s peppers/tomatoes/what-is-it-this-week Salmonella outbreak is a perfect example. Businesses lost large sums of money pulling products off the shelves in large part because grocery stores, distributors, and importers had no idea where the products they sold came from or went to.

Second, even where a business is in the chain of distribution of a defective product, its legal and economic gameplan can be crippled by an inability to identify the source of the implicated food. Being the manufacturer of a food product that ultimately causes consumer illness is a tough spot legally, but it sure helps to have company. If a manufacturer can identify a contaminated ingredient or raw material it may have contractual or tortuous claims, or both, against its supplier. Also, in some states, the law provides some legal relief for an entity that is "only" a seller of a contaminated food product, and not the manufacturer. However, those same states remove those protections where the seller cannot identify the manufacturer and provide an avenue of relief for the injured consumer.

For a manufacturer, distributor or seller, tracking the source of the food products you handle is the easiest way, if not the only way, to avoid being on the hook for someone else’s food-safety shortfall. The attorneys at Marler Clark spent a great deal of time speaking with corporate representatives, sharing what we know about curtailing foodborne illness. Inevitably we are asked, "What can we do to avoid being sued by Marler Clark?" Often my first answer is to thoroughly, and accurately track the food items moving through your production lines. The best news is that if corporations do this, they will also be complying with the law, and keeping all of our food safer.

Dave Babcock is a lawyer at Marler Clark.