TIME : -
The food industry is facing a daunting array of new liability exposures and new challenges.
The Food Safety and Management Act ("FSMA") of 2011 reshaped the governance of the food industry by the Food and Drug Administration ("FDA"). The FDA has now begun to issue the regulations pursuant to that Act, and these regulations will have an immediate impact on the safety of food in this country.
FSMA is also an important impetus behind the rise in produce recalls. Some of these recalls are initially by the FDA, but many are voluntary, by food companies that fear contamination of their products. The general liability policy should respond to claims of bodily injury resulting from food products. As to economic costs, product contamination insurance is now available. However, many companies that have purchased such policies find themselves frustrated by denials that necessitate coverage litigation.
This has coincided with significant public concern over Genetically Modified Organisms ("GMO"). Vermont has passed a law requiring the labeling of food that contains GMO, a law that is now being challenged in court. Labeling is also the issue in the many lawsuits that challenge foods that are labeled 'natural,' or that otherwise have labels that allegedly deceive consumers. Both labeling and related GMO issues have resulted in numerous class actions against food companies.
Challenges arising from allegedly contaminated products, to health and nutrition claims, such as "natural" and "health" have put a target on the backs of the industry. After almost a decade of civil litigations we can see certain trends in the courts on such fundamental questions as which claims will be preempted by federal laws, the quality of proof required to survive a motion to dismiss, and the extent to which a class can be ascertainable before it can be certified.
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