The Impact of the Food Safety Modernization Act with Bill Marler


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Bill Marler's presentation at the 2011 Government Accountability Project (GAP) Conference on the impact of the Food Safety Modernization Act on food safety and litigation. Marler Clark, The Food Safety Law Firm.

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The Impact of the Food Safety Modernization Act with Bill Marler

  1. 1.
  2. 2. My Top Eleven<br />Improve surveillance<br />Government Agencies work together<br />Train, certify, vaccinate food handlers<br />Stiffen license requirements<br />Increase food inspections<br />
  3. 3. My Top Eleven<br />Reform agencies at every level to be more proactive<br />Legal consequences<br />Technology to make food more traceable<br />Promote research<br />Provide tax breaks<br />Improve consumer understanding<br />
  4. 4. Food Safety Modernization Act<br />Allow the FDA to order a recall of tainted foods;<br />Require larger food processors and manufacturers to registerwith the Food and Drug Administration and create detailed food safety plans;<br />Require the FDA to create new produce safety regulations for producers of the highest-risk fruits and vegetables;<br />
  5. 5. Food Safety Modernization Act<br />Require CDC and State Health Departments to coordinate Foodborne Illness surveillance;<br />Establish stricter standards for the safety of imported food;<br />Increase inspections of domestic and foreign food facilities, directing the most resources to those operations with the highest risk profiles.<br />
  6. 6. Whistleblower Protection – Unlawful:<br />To discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee)<br />(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;(2) testified or is about to testify in a proceeding concerning such violation;(3) assisted or participated or is about to assist or participate in such a proceeding; or(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.<br />
  7. 7. Civil Litigation – How it Really Works<br /><ul><li>Strict liability
  8. 8. It is their fault – Period!
  9. 9. Negligence
  10. 10. Did they act reasonably?
  11. 11. Punitive damages
  12. 12. Did they act with conscious disregardof a known safety risk?</li></li></ul><li>Strict Liability for Food – a Bit(e) of History<br />“… a manufacturer of a food product under modern conditions impliedlywarrants his goods… and that warranty is available to all who may be damaged by reason of its use in the legitimate channels of trade…”<br />Mazetti v. Armour & Co., 75 Wash. 622 (1913)<br />
  13. 13. Who is a Manufacturer?<br />A “manufacturer”is defined as a “product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer….”<br />RCW 7.72.010(2); see alsoWashburn v. Beatt Equipment Co., 120 Wn.2d 246 (1992) <br />
  14. 14. The Legal Standard: Strict Liability<br /><ul><li>The focus is on the product; not the conduct
  15. 15. They are liable if:
  16. 16. The product was unsafe
  17. 17. The product caused the injury</li></ul>STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT.<br />
  18. 18. Why Strict Liability?<br />Puts pressure on those (manufacturers) that most likely could correct the problem in the first place<br />Puts the cost of settlements and verdicts directly onto those (manufacturers) that profit from the product<br /><ul><li>Creates incentive not to let it happen again</li></li></ul><li>Regulation<br />Does “Big Brother” have the answers?<br />Are the standards correct?<br />What Political Influences?<br />
  19. 19. Litigation<br />Lawsuits would seem to provide important feedback to these firms about how much they should invest in food safety.”<br />“[However,] much of the costs of illness borne by people who become ill … are not reimbursed by food firms responsible for an illness.”<br />“In short, the legal system provides limited incentives for firms to produce safe foods.”<br />
  20. 20. Criminalization<br />Again, getting caught is an issue<br />In 18 years only a handful of people have been fined and only two jailed<br />Where is the incentive to produce safe food?<br />
  21. 21. Questions<br />
  22. 22. For More Information…<br />Bill Marler<br />Marler Clark, The Food Safety Law Firm<br />1301 2nd Avenue<br />Suite 2800<br />Seattle, WA 98101<br />1-866-770-2032<br />