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Who’s Minding the Store - The Current State of Food Safety and How It Can Be Improved. THE PROMISE OF SAFE FOOD: A Law-in-Action Perspective. Denis W. Stearns, J.D. firstname.lastname@example.org. FOOD: the most dangerous product in the United States?.
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Who’s Minding the Store - The Current State of Food Safety and How It Can Be Improved
THE PROMISE OF SAFE FOOD:A Law-in-Action Perspective.
Denis W. Stearns, J.D.
“In fact, contaminated food products caused more deaths each year than the combined totals of all 15,000 products regulated by the U.S. Consumer Product Safety Commission.”1
For just FIVE foodborne pathogens, medical costs, productivity losses, and the costs of premature death total: $6.9 BILLION2
1. Buzby, et al.Product Liability and Microbial Foodborne Illness (2001) ERS Agricultural Economic Report No. 799.
2. USDA ERS 2000 Cost-estimate, cited in S. Crutchfield & T. Roberts, “Food Safety Efforts Accelerate in the 1990’s,” Food Review, 23:3, p. 48 (September-December 2000).
+ Cost/Benefit Analysis
+ Return on Investment
+ Brand-value, good will
Market Failure & Public Safety
Food is a “Credence” Good
Because safety is invisible, no price premium
Companies unable to compete on safety
“For the most part, food safety is a credence attribute, meaning the consumers cannot evaluate the existence or quality of the attribute before purchase, or even after they have consumed [it].”1
1. See E. Golan, et al., Savvy Buyers Spur Food Safety Innovation in Meat Processing, Amber Waves, April 2004,
Safe Food as a Moral Obligation
Law of Moses required: “a perfect and just weight, a perfect and just measure.” DEUTERONOMY 25:15
Han Dynasty, 2nd Century BC prohibited: “the making of spurious products, and the defrauding of buyers.”
Roman Law, Theodosian Code, A.D. 438 required bread to for public sale to be arranged on the steps of a building according to its grade to prevent fraud.
Food exchange was neither anonymous nor disinterested; it was defined by relationship, not contract nor other legal duty.
The Middle Ages saw the rise of farmer-sellers and merchant-manufacturers selling at local markets.
“Expanded trade in the countryside was…itself a precondition for the growth of the cities.”1
Given the local character of the economy, a merchant’s reputation would be well-known and much relied upon.
Food quality and integrity protected by extra-legal sanctions, the importance of preserving reputation, and “self-help.”
1 See H.J. Berman, LAW AND REVOLUTION 296 (Harvard 1983)
In 1315, in France, angry French citizens staged mass punishment of 16 bakers who mixed flour with animal droppings, lashing them to wheels and beating them.
Butcher paraded through the streets in a garbage cart for the offence of selling “measly” meat.1
Community accountability thus joins moral accountability.
See H.J. Berman, LAW AND REVOLUTION 296 (Harvard 1983)
Merchants formed self-policing guilds, giving rising to a body of customary mercantile law to resolve disputes.
violators risked expulsion from the guild
meant to protect reputation of merchant class
As guilds became more powerful, self-policing lessened, giving rise to local ordinances prohibiting adulteration
Purity laws enacted—e.g., Thuringian Rostbratwurst purity law of 1432, and the Bavarian beer purity law of 1516
The lack of anonymity in the food supply meant community reputation continued to be primary incentive for safe food.
“the only safe rule is to confine the right to recover to those who enter into the contract: if we go one step beyond that, there is no reason why we should not go fifty. The only real argument in favor of [allowing] the action is, that this is a case of hardship; but that might have been obviated, if [Mr. Wright] had made himself party to the contract. “
Winterbottom v. Wright, circa 1842, England (affirming rule of privity).
From the 18th to the 20th Century
The Invention of Refrigerated Rail Car & Nationwide Distribution
And so a food supply once defined by a lack of anonymity and community accountability transformed into its opposite.
A Call for National Regulation
Factory food production de-emphasized quality, emphasized cost & productivity.
Investing in quality and safety was an economic and competitive disadvantage.
“there is an incentive for sellers to market poor quality merchandise since the returns for good quality accrue mainly to the entire group…rather than to the individual seller.” ~ George Akerlof, Ph.D.
from “The Market for Lemons: Quality Uncertainty and the Market Mechanism.”
So who was the Pure Food Act & Federal Meat Inspection Act reallyintended to protect?
by Prosper Montagne, published 1938
“”The unwholesome, adulterated, mislabeled, or deceptively packaged articles can be sold at lower prices and compete unfairly with the wholesome, not adulterated, and properly labeled and packaged articles, to the detriment of consumers and the public generally.” FMIA, §602
Congressional Statement of Findings,
“Buried in the disputes over federal regulation is a conflict between local and national food companies. In various ways, federal regulations conferred competitive advantage on national firms.”
SeeC. Coppin and J. High, THE POLITICS OF PURITY: Harvey Washington Wiley and the Origins of Federal Food Policy (1999).
CompareMedieval Merchant Guilds’ “self-policing” with Western Grower’s Association Produce Marketing Agreement.”
“To the old rule [of privity] should be added another exception—not one arbitrarily worked by the court—but arising...from the changing conditions of society. … a manufacturer of food products under modern conditions impliedly warrants his goods when… and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade…” Mazetti v. Armour & Co., 75 Wash. 622 (1913)
STEP ONE: “The consumer no longer has the means or skill enough to investigate for himself the soundness of a product.” Escola v. Coca Cola Bottling Co., 150 P.2d 436, 467 (1944) (Traynor, concurring).
STEP TWO: “The purpose of [strict] liability is to insure that the costs of injuries resulting from defective products are borne by manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” Greenman v. Yuba Power Products, 377 P.2d 897 (1963)
“Private markets often fail to provide adequate food safety because information costs are high, detection often very difficult, and the nature of contamination is complex. Underlying many of the food safety failures is the existence of externalities, or costs not borne by those whose actions create them.”
Helen H. Jensen, Food-system risk analysis and HACCP, p. 63, in NEW APPROACHES TO FOOD-SAFETY ECONOMICS, G.J. Velthius, et al. (eds.) (2003).
Externalities: “…costs not borne by those whose actions create them.”
“Reported outbreaks probably account for only a small proportion of deaths from unknown foodborne agents because most foodborne outbreaks are never recognized or reported.”1
1. Paul Frenzen, Deaths Due to Unknown Agents,
Emerging Infect. Dis., 10; 9 (Sept. 2004).
Market Failure & Public Safety
“Lawsuits by consumers to recover damages due to foodborne illness can affect the behavior of firms that make or distribute food products. The magnitude of this effect is unknown, however, because information about litigation involving injuries due to food products contaminated by microbial pathogens is scarce. Firms…generally prefer to resolve consumer complaints about foodborne illness outside the courtroom, where they can keep the compensation payments confidential, and avoid or reduce adverse publicity about their products.” (Buzby, et al., Chapter 1, at p. 2)
Person injured by unsafe food pays cost in medical bills, lost wages, and pain.
Lawsuit seeks recovery of damages caused by (profits of) sale of unsafe food.
While lawsuits remain a relatively ineffective incentive to increased food safety investment, they are highly effective at compensating the person injured by defective foods.
“Locavore”— a person who adopts the practice of relying on fresh, locally grown food items
2007 Oxford American Dictionary Word of the Year
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