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Issues Regarding Raw Milk Sales and Consumption

Issues Regarding Raw Milk Sales and Consumption. What are the legal implications? William D. Marler, Esq. Outbreaks linked to unpasteurized milk. 1994 – 18 ill with E. coli O157:H7 – “pasteurized” milk 1998 – 55 ill with E. coli O157:H7 – “fresh” cheese curds

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Issues Regarding Raw Milk Sales and Consumption

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  1. Issues Regarding Raw Milk Sales and Consumption What are the legal implications? William D. Marler, Esq.

  2. Outbreaks linked to unpasteurized milk 1994 – 18 ill with E. coli O157:H7 – “pasteurized” milk 1998 – 55 ill with E. coli O157:H7 – “fresh” cheese curds 2001 – 75 ill with Campylobacter – raw milk 2003 – 62 ill with Salmonella – raw milk 2005 – 18 ill with E. coli O157:H7 – raw milk 2006 – 27 ill with Campylobacter – raw milk 2006 – 2 ill with Campylobacter – raw milk

  3. Legal Implications Raw Milk:

  4. Strict Product Liability The manufacturer of a defective product is liable if the defect rendered the product unreasonably dangerous, and the defective product caused the victim’s injuries.

  5. “Manufacturer” • Differs somewhat in every state • Many states exclude product sellers who are not manufacturers • Working definition: entity that designs, constructs, or fabricates the product

  6. Key Elements • Milk is a “product”—raw or pasteurized • Contaminated milk is “unreasonably dangerous” • Thus, the “manufacturer” – i.e. the dairy – is strictly liable for injuries caused

  7. Related Issues • Comparative fault • Releases and Waivers • Trade association liability • Cow share arrangements

  8. Personal injury “damages” are reduced by plaintiff’s share of fault Comparative Fault

  9. Examples of Comparative Fault • Consumer milks the cow and fails to follow sanitary measures • Consumer fails to refrigerate the raw milk • Consumer aware of risk and ignores it

  10. Releases and Liability Waivers • Are they enforceable? • If so, what’s the effect?

  11. Enforceability Rules differ from state to state Common elements of enforceability • Conspicuous—e.g. waiver clause is not in “the fine print” • Clarity—e.g. waiver clause identifies the risk • Meaningful opportunity tounderstand—e.g. the consumer has an opportunity to read and digest the terms of the contract

  12. Legal effect of waivers • Enforceable waivers may bar claims for damages • But most outbreaks involve kids who did not sign the waiver Can a parent sign away his child’s right to sue?

  13. Trade Association Liability: • Trade associations can be held liable for consumer injuries • The crux of trade association liability is whether consumers rely on the association’s information and expertise • This depends, in part, on the association’s prominence

  14. The “price” of Weston A. Price’s prominence

  15. Cow Share Agreements • Agreements that seek to avoid bans on unlicensed sale of raw milk • Instead of selling raw milk,the farmer sells a “portion of the cow” • Not a valid interpretation of Washington State licensing requirement Cow Share = Offshore Tax Shelter

  16. Questions? Marler Clark LLP, PS 6600 Columbia Center 701 Fifth Avenue Seattle, Washington 98104 (206) 346-1888 www.marlerclark.com

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