A Short Primer on Foodborne Illness and Injury Legal Issues For Consumers

Foodborne illness and related economic injury has become a very large and vitally pressing national level problem. Indeed, the degree, breadth and frequency of foodborne illness and injury are quite staggering. News reports and alerts about wide-scale outbreaks of food poisoning or recalls of tainted, misbranded foods or beverages abound to the point of being commonplace. This article covers what are foodborne illnesses and the steps to take if you have been injured by a foodborne illness including when to consult with an injury attorney.

Foodborne illness and injury in recent years has long ceased being a simple mundane local public health and business-legal problem, such as when food served at local restaurant sickens a group of local patrons. Because of the speed and high degree of interconnection between domestic and foreign food supplies, the public health and resulting business-legal issues relating to a foodborne illness and injury outbreak have become extremely complex. More and more frequently a foodborne illness and injury outbreak event is one of multi-state, national and even international proportions.

What is foodborne illness?

Harmful bacteria, viruses, parasites or chemicals present in food and beverages entering the body through the gastrointestinal tract following ingestion cause Foodborne illness, injury or disease – more commonly referred to as “food poisoning”. The most commonly recognized foodborne infections are those caused by the bacteria Listeria, Campylobacter, Salmonella, and E. coli O157:H7, and by a group of viruses called Calicivirus, which are also known as the Norwalk and Norwalk-like viruses.

A variant of foodborne illness is allergic reaction to a food. Injuries from allergic food poisoning often occur when a consumer unknowingly eats a food product that contains an undeclared allergenic ingredient. Since 2006 Federal food labeling law requires a number of known or suspected food allergens (eggs, shellfish, peanuts, and wheat to name a few examples) present in a food product be disclosed in the product’s label.

Fortunately, food poisoning and injury events most often cause a consumer to suffer no more harm than an annoying, mild gastrointestinal problem. Most food poisoning injury events result in two to four days of discomforting nausea, vomiting, and/or diarrhea, and perhaps a few days missed work or school. Foodborne illness and injury outbreaks, however, also can cause some devastating catastrophic and fatal bodily injuries to a consumer, especially when vulnerable populations such as children, elderly, pregnant women and immunocompromised individuals, consume the food product.

What to do if a victim of food poisoning?

When a consumer believes he or she (or a family member) has consumed a food product that has caused a serious illness or injury, appropriate measures to protect both the victim’s health and legal rights need to be immediately taken including consulting an injury attorney.

First of all, of course, is that any needed medical attention should be promptly obtained.

The consumer should also make sure that the local health department is promptly notified about the situation. Local health department investigations into reports of consumers becoming ill following eating a food product or eating at a restaurant most often provide the critical and time sensitive scientific detective work needed to establish the existence and cause of a foodborne illness outbreak. While outbreaks are sometimes discovered during inspection agency facility inspections and food sample testing, more often it is through local health department investigations into consumer reports of food related illness – some times working in conjunction with the CDC, FDA, USDA and other local or state health departments- that the existence of a widespread foodborne illness problem is uncovered.

Finally, when injured by food poisoning a consumer should immediately begin documenting the situation and collecting and preserving evidence for their injury attorney to review. If the manufacturer, supermarket or restaurant proprietor was notified about the food injury or illness in writing or e-mail, a hard copy and, if applicable, an electronic copy of what was sent should be kept and preserved. This is important in many states including New Jersey where giving notice of breach of warranty is a prerequisite to a Uniform Commercial Code breach of warranty claim.

If there are any phone conversations regarding the claim with either a public health authority or with a vendor or its claims agent (which is not recommended without the assistance of legal counsel), the dates, the names and titles with whom spoken and a summary of the conversation should be documented. Any store or restaurant/bar receipt and/or credit card bill for the subject food or beverage should be saved. If the food consumed was bottled, canned or packaged, the container or weight/price labels should be saved (and/or photographed) and any left over or remaining product preserved if possible. Names and addresses of others similarly sickened should be gathered and recorded.

If any product or sample is given to a public health authority or the vendor or any claims agent, a receipt documenting what was given, its condition and the date transferred should be obtained, and an understanding of what would be done obtained. Photographs of the product, if available and of any apparent physical injuries (such as rashes, hives) should be taken and preserved. If other packages or bottles of the same date or lot were purchased and still on hand, they should be kept intact and unopened to the extent possible. If opened, they should be preserved to the extent possible. Medical care and medication expense receipts or documents should be collected and saved. The consumer should also keep in mind that there are time limits on suing following the occurrence of an injury.

Consultation with an injury attorney with expertise in this area of the law is highly recommended.