At this week's Food Safety Symposium in Denver, well known attorney Bill Marler outlined the best ways foodservice firms can reduce liability when it come to issues surrounding food safety, from arming employees with proper information, to working with vendors and suppliers throughout the supply chain.
The invitation-only event is produced by Nation's Restaurant News and sponsored by Ecolab.
Marler, who rose to prominence representing victims of the E. coli 0157:H7 outbreak related to undercooked hamburgers sold by Jack in the Box in 1993, said the restaurant industry has indeed gotten smarter about food safety. Incidents of E. coli outbreaks related to beef have declined, he told attendees, and more restaurant operators now include indemnity clauses in their contracts with suppliers, a testament to the lessons learned from outbreaks over the years.
“I made money off the 0157:H7 cases, but there are fewer cases linked to beef,” said Marler, a partner in the Seattle-based law firm of Marler Clark. “But for the leafy green and cantaloupe industries, I wouldn’t have anything to do.”
In his speech during the symposium, he outlined ways for restaurant operators to minimize food safety liability and litigation in their businesses.
Among the most important steps:
• Identify the hazards. “This is not always easy because pathogens change,” Marler said. But companies should ask themselves if they have a HACCP plan in place and, more important, if they have committed and qualified people who understand the difference between types of pathogens, incubation times and other such food safety details.
• Think about the culture. Do you have a food-safety culture? “People like to make money and they are always bumping into ethical issues,” Marler said. “You have got to draw a line in the sand that you won’t cut corners.”
• Involve vendors and suppliers. Do they have a food safety plan? Do you visit them to confirm they do?
• Recognize government as your best friend. “They will watch your back if you are doing everything you can do to eliminate outbreaks,” Marler said. You do not want to alienate them as Del Monte did by suing the Food and Drug Administration as well a senior Oregon epidemiologist for alleged misleading statements about the company’s imported cantaloupes, Marler said, noting, “I’ve got experts lining up.” The complaint against the Oregon epidemiologist was dismissed Tuesday.
Marler also recounted some of his legal victories, including that for Brianne Kiner, an 8-year-old girl in 1993 when she survived the outbreak linked to undercooked Jack in the Box hamburgers. She was awarded $15.6 million. He suggested that the best ways operators could insure a brand’s reputation was to:
• Arm employees with good and current information.
• Be proactive. Make sure food safety is part of everything you do.
• Treat customers with respect. Some claims of illness will not be legitimate, but some are, he noted. “You don’t want them to hire me,” he said.
Marler said these days he spends less time pursuing restaurant companies and more time looking at manufacturers. That is, in part, because of the indemnity clauses, which require vendors to pay for any loss or damage that might be caused by a problem with their product. That practice was uncommon even eight years ago when the Chi-Chi’s chain was hit hard by a Hepatitis A outbreak linked to contaminated green onions in 2003, Marler said.
“It’s a double-edged sword,” he noted. “[Restaurant operators have] pushed the liability and pressure back up stream to the manufacturers so products are as high quality as possible.”
He added, “The restaurants may not get sued, but they still get tarred in that outbreak.”
Most recently, Marler has filed suit against Jensen Farms, a Colorado-based grower of Rocky Ford cantaloupes, which have been implicated in a multi-state Listeria outbreak, and Wal-Mart Stores Inc. No foodservice operations have been connected to the outbreak.
Contact Robin Lee Allen at [email protected].
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