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Hepatitis A at Chi-Chi's and O'Charley's. E. coli at Taco Bell, Sizzler and Jack-in-the-Box. Salmonella at Golden Corral and in your peanut butter. It used to be, "Where can I get a good bite to eat?" More recently, it's, "Where can I go and not get sick?" Even Fido isn't safe in light of the recent outbreak of pet illnesses and deaths attributed to foodborne pathogens from China.

Of course, in the wake of each of these outbreaks, there has been a rash of claims and litigation, the natural outfall of these unfortunate events. Resolving these claims can be very costly--ask the insurers that paid hundreds of millions of dollars to resolve the claims of customers who dined at a Chi-Chi's, Sizzler and Jack-in-the-Box, and whose "takeout" included hepatitis A virus and E. coli. Some customers actually died, and many others were hospitalized and disabled for life. Even where individual claims from foodborne illness are small and sickness minimal, the cost of a regional or nationwide food recall can be monstrous to an insured, not to mention business interruption.

Glaringly lacking for many years has been a comprehensive set of regulations or guidelines that would enhance the safety of growing, harvesting, distributing and serving fresh produce. The recent Food and Drug Administration-issued guidelines on the microbial safety hazards of fresh fruit and vegetables, however, could be a step in the right direction.

Citing the 72 foodborne illness outbreaks from fresh produce between 1996 and 2006, the FDA has taken the first step in pervasively regulating this $12 billion a year industry. Spurred by the recent E. coli spinach outbreak, it has proposed guidelines to govern the food-handling practices of growers, distributors, retail sellers and restaurants. The rules cover all facets of food-handling and processing--from worker sanitation and training to building layout and equipment to packaging and documentation/records. Still in draft form, being distributed for comment and subject to revision, the guidelines can be found at www.cfsan.fda.gov/~dms/prodgui3.html.

However, as with all federal regulations, if they become final, they will become a benchmark, as well as a source of controversy, in the courts. Plaintiffs and their counsel will rely upon the guidelines to hold all actors in the "food chain" responsible, from the farm to the restaurant. Those who fail to comply will be charged with culpability.

On the other hand, defendants and their counsel will defend foodborne illness claims by trumpeting their satisfaction of the guidelines. Whether this kind of evidence is admissible will vary from state to state and may depend upon the nature of the specific claim: i.e., negligence, strict product liability or breach of warranty. There are recent decisions that do confirm that failure to meet FDA guidelines equates to liability.

Whatever the outcome, the guidelines could be a sign of more stringent rules to come. If you're on the food-production side, beefing up food safety is critical--whether you serve produce or burgers. Insurers of food producers should consider requiring--or, at the very least, auditing--compliance with these guidelines before granting coverage. Bottom line: Start the process now.

PHILIP KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.

June 1, 2007

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