Food Safety In-Sight
Roy E. Costa, R.S., M.S.
In a perfect food safety world, operators of food facilities would place the health of the consumer above all else. Science-based foodborne illness prevention systems would be in place from farm to table and government in partnership with industry would effectively monitor the food supply so unsafe conditions could be detected and quickly corrected. In a perfect world, food safety would be a given. In reality, operators do not adopt food safety systems because of an overarching concern for public health and safety. Think about how and why the Food, Drug and Cosmetic Act of 1906 came into being. As a reminder, it came about as a result of Upton Sinclairís book, ìThe Jungleî. Sinclairís novel depicting horrendous sanitary conditions in Chicagoís slaughterhouses galvanized public opinion and forced congress to regulate the food industry. The media is still at work today exposing wrongdoing in the food industry. Since history and our modern experience prove that we cannot depend upon industry to place the good of society above business interests, we enact laws and rules to protect the health, safety and welfare of consumers.
While these laws and rules are well intentioned, they depend for the most part on public agencies for enforcement. When agencies are properly funded and have strong political support they protect the public. When they are weak or lose sight of their mission, the public faces increasing risk. Our current food safety regulatory system is a patchwork of agencies that for the most part have their roots in the earliest days of public health. While some still say the United States enjoys the safest food supply in the world (or ìone of the safestî as our government now says!) our public health infrastructure is deteriorating under the pressure of shifting legislative priorities and dwindling resources. Many health departments are cutting positions, leaving positions vacant, or trying to pass responsibility off to other agencies. While bio-security concerns have refocused the legislative agenda on public health and safety, less and less money is being spent on core public health programs. Many agencies are in serious jeopardy of defaulting on their mission. In Florida, for example, the Division of Hotels and Restaurants has come under attack in the media for failing to meet inspection quotas and failing to enforce basic sanitation and safety laws.
Floridaís failures are noteworthy in light of the fact that serious economic impacts on travel and tourism could result from negative publicity. This criticism is not surprising, however, as many health departments around the country have come under intense scrutiny for lax enforcement and poor performance, and our federal agencies have not escaped criticism, either.
If we cannot depend on the regulatory framework to protect us, consumers can still redress their grievances in our judicial system through tort, derived from the Latin word ìtortusî which meant wrong. In French, “tort” means ìa wrong”. Tort refers to that body of the law allowing an injured person to obtain compensation from the person who caused the injury. The law expects every person to act without hurting others. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (“damages”) so that, ultimately, they will suffer the pain cause by their action. Tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct. Tort may be the most effective means of bringing about a proactive mentality in the food industry. While interventions such as media reports, posting of grades, and negative publicity create momentum for change, this type of intervention depends on the public to stop patronizing substandard establishments.
Monetary damages on the other hand have a direct if not immediate effect on business. While the willingness of insurance companies to settle claims has given the food industry a good bit of protection until now, this may change. Attorneys are becoming more successful at proving cause and effect thanks to better science, and jurors are growing more sensitive to the pervasive food safety problems they personally experience or see in their community. When attorneys have sound scientific evidence, claims may reach seven-figures, or more. The outbreak of HAV caused last spring by green onions may top $100,000,000.00 in claims. If attorneys can prove negligence or disregard for known safety risks, awards may mushroom. A jury awarded $24,000,000.00 to victims of a norovirus outbreak in a hotel after management was shown to have allowed ill employees to work with catered food. The only real answer for an operator is of course not to cause an outbreak in the first place. But should it occur, it is imperative to show due diligence by having had in place a state of the art food safety system and the highest level of regulatory compliance. If you are a prudent CEO or owner of a food operation ask yourself this question ìam I diligent in my efforts to prevent injury to a consumerî? If your answer is not a resounding ìYES!î chances are pretty good your business might someday be the subject of nationwide news, and you could find yourself involved in a costly and lengthy legal battle.