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Paid Sick Leave for Food Workers is a Win-Win

(Image Credit: International Business Times “When Sick, Most Food Service Employees Go To Work Anyway

Paid sick leave for food workers should have always been a no-brainer, because it’s a win-win for business and public health. But in our new “normal” of Shelter-in-Place, it should be mandatory.

The Need

As of 2018, more than 13 million Americans worked in foodservice. A recent federal study found that about one out of every eight restaurant workers “worked when they were sick with vomiting or diarrhea on two or more shifts during the last year.”  Other studies have found that HALF of food industry employees go to work even when they are sick.

Why? Because “if you don’t go to work, you don’t get paid.” And few states require restaurants to provide paid sick leave to their workers. (Beginning in 2015, California required restaurants to provide paid sick leave under The California Healthy Workplaces, Healthy Families Act of 2014.)

The newly-passed federal “Families First” Act is a good first step, but it does not go nearly far enough. It is temporary (expires December 31, 2020), and there are huge exceptions for large employers like McDonald’s, with 1.7 million employees. (McDonald’s and some other large restaurant chains have voluntarily offered limited paid sick leave, but many workers fear retaliation for attempting to use it.) There are also exceptions for small businesses.

The Plan

A national paid sick leave act for food industry workers, with protection against retaliation, is needed. Pandemics do not respect state boundaries or our federalist system of government. Sick people must stay home to protect others against COVID-19 and future pandemics. The benefits of (im)mobilizing to prevent collapse of our health care system and economy far exceed the costs.

Hand Sanitizers Don’t Remove Food Allergens

handwashing

Image credit: University of Nebraska

Everyone knows that hand washing is an important part of staying healthy. Hand sanitizers have their place, too, because they kill germs. However, sanitizers do not remove food allergens.

sanitizers dont stop allergens

Image credit: kidswithfoodallergies.org

This means that if you eat a food that contains allergens like peanuts, there is a serious risk that the allergic peanut proteins will still be on your hands even if you use hand sanitizer. To reduce the risk of contaminating other people or surfaces with those allergens, wash your hands with soap and water, or use wet wipes.

Legislators Question Epi-Pen Price Spikes


Image Credits: Mylan (R), New York Times

Following up on my posting about why Epi-Pen prices have increased 5-6X in 12 years, the New York Times reports that a bipartisan group of legislators is questioning the basis for these price spikes.

As the medicine and injection technology have not changed in years, consumers have also started an on-line petition to Stop the Epi Pen Price Gouging.

Mylan’s virtual monopoly limits access to life-or-death medication and disproportionately redistributes public dollars for private gain.

Food Fraud – More Emerging Risks

August 3, 2016 1 comment

fake rice image

Image Credit: Mauro Alvarees and Q Costa Rica

Just when I thought I understood the vast extent of food fraud, FoodLawLatest reported about another one: rice made from plastic. Rice is one of the cheapest foods available, so I had not considered that it presented a risk of economic fraud.

If someone is making a profit from selling a food, then there is a motive and opportunity for someone else to sell a counterfeit version of it. This problem is worldwide — from fake bottled water in China, to counterfeit Smirnoff vodka in Europe, to mislabeled seafood in the U.S. And this problem is not limited to high-value products.

Although some fraudsters are criminally prosecuted, some consumers who discover food fraud seek justice with class action lawsuits.

 

“Natural” Food and Artificial Injustice – Toward a Fair Liability Standard

Please see my recently-published article in Plaintiff Magazine regarding the liability standards that apply in California for food-related personal injuries.

The Mexicali Rose decision allows plaintiffs to state some previously non-cognizable negligence claims against restaurants that serve injury-causing food.  Mexicali Rose v. Sup. Ct. (Clark), 1 Cal.4th 617, 621 (1992) (“Mexicali Rose”).  However, if the injury resulted from a substance that was “natural to the preparation of the food,” then strict liability and breach of warranty claims remain barred.  Id. at 630.

In light of food processing and safety changes that have occurred since this 1992 decision, the artificial, vague, and unworkable distinction between foreign and purportedly natural substances should be overruled.  A fair measure of justice should be available for all consumers, based on their reasonable expectations for the food served.

“Good Things Come From Sysco” (Allegedly Via Unrefrigerated Storage Lockers)

NBC Bay Area has reported that foodservice giant Sysco allegedly kept perishable foods in unrefrigerated storage lockers for several hours before delivering them to customers.

If these allegations are true, they raise multiple issues regarding food safety and quality.  Most laypersons know that perishable food like milk and meat must be stored at proper cold temperatures to maximize food safety and minimize the growth of many dangerous pathogens.  The USDA recommends discarding many perishable foods that have been held above 40 degrees F for more than two hours.  Sysco clearly understands these concerns, as it (1) presents ServSafe “state-of-the-art food safety training” and (2) tells investors all about the high technology used in its climate-controlled warehouses.

Refrigeration is also critical to maintain food freshness throughout its recommended shelf life.  Perishable foods that have been subjected to temperature abuse rapidly degrade in quality, so buyers may not be getting all of the freshness they paid for.

This also raises an issue of unnecessary food waste.  Even utilizing modern temperature controls, each year, Americans throw away almost half of their food, worth an estimated $165 billion.  This means more than just people going hungry; it wastes massive amounts of water, land productivity, and energy.  Sysco represents that it takes its sustainability responsibility “seriously.”

So how can buyers protect themselves from temperature-abused food that might look just fine when it is delivered?  Technologies like RFID provide data to verify proper holding temperatures throughout the supply chain, but they are not used as widely as they could be.

If the allegations are proven, “Sysco faces misdemeanor criminal charges and a one thousand dollar fine for each violation,” not including possible customer lawsuits.

Food Fraud: More Than Just Economic Injury

Do you really know what kind of fish you’re eating?” And why that’s such an important question?

As recently reported in Food Safety News, food fraud (by way of species substitution) presents more than a risk of ripping off consumers.  Pregnant women may be unwittingly exposed to toxins, gastric distress, and allergens from consuming seafood that is not what it purports to be.  Honest employees of fishing companies, distributors, and retailers that sell genuine products can lose sales and their jobs.

U.S. Senator Barbara Boxer (D-CA) recently asked the FDA to increase its efforts to reduce seafood mislabeling.  For bad actors, increased “traceability and enforcement . . . from bait to plate” presents risks of criminal prosecution and civil damages from class action litigation.  However, for seafood companies that adopt best practices, it also provides promotional and marketing opportunities.

Food Fraud Presents Risks of Criminal Prosecution

The latest reminder of the risks of perpetrating food fraud: on May 22, 2012, the U.S. government filed felony charges against a seafood importer for allegedly falsifying Country of Origin Labeling (COOL).  According to the filing, Worldwide Shrimp Company and others conspired to violate the Lacey Act by labeling Mexican shrimp as a product of the U.S.

The defendants, of course, are innocent until proven guilty beyond a reasonable doubt.  The purpose of this posting is not to suggest otherwise.  Rather, it is to identify three (of many) underlying reasons why COOL laws are important to businesses and consumers.

First, some consumers choose not to buy imported foods like shrimp and honey, because they may be contaminated with banned chemicals that might cause personal injury.

Second, even if no one suffers personal injury from an imported food, in some states, economic injury is enough to provide standing for plaintiffs to sue, because labels matter.  Consumers often are willing to pay more for foods from certain countries (or to avoid buying foods from others) for many reasons not directly related to safety, such as supporting local jobs or reducing energy use.

Finally, companies that are accused of violating COOL laws should keep in mind they risk conviction in the court of public opinion.  Many consumers understand that companies willing to violate COOL laws may also be more likely to break other laws that affect food safety.

Food Fraud – An Emerging Litigation Risk

April 24, 2012 2 comments

Food Fraud presents an emerging litigation risk in California and nationwide.

What is Food Fraud?

Food fraud occurs when someone sells a product that is not what it purports to be.  A few examples include short weighting (e.g., including the weight of excessive ice glazing) of frozen seafood, species substitution, dilution of premium olive oil with inferior oil, and misrepresenting a product’s country of origin.

How do Fraudsters Get Away with It?

Many times, only minor distinctions differentiate competing products, so it can be difficult even for trained professionals to detect fraud.  Almost two hundred years ago, British writer Cyrus Redding stated that consumers could avoid food fraud by becoming “perfect[ly] acquaint[ed] with that which is good.”  But how can one become “perfectly acquainted” with the differences between conventionally-produced and “free range” eggs, other than by the price paid?

Why is this an Emerging Litigation Risk?

Food fraud is economic fraud, because labels matter, and customers want to get what they pay for.  Some states have already seen food fraud class actions filed that allege honey laundering.  Food fraud also presents a risk of food allergy personal injury litigation for companies that substitute cheaper finfish products like surimi for shellfish like crab.   Food fraud also may result in criminal indictment and imprisonment.  There  are also the indirect costs of negative publicity arising from conviction in the court of public opinion.

What can be Done to Manage Food Fraud Risks?

Companies that implement food fraud risk management plans that include traceability systems like RFID and third-party verifiers may be able to reduce their food fraud risks and increase sales.

“Pink Slime” and Lessons Learned Re: Labeling and Advertising

By now, the use of “lean, finely textured beef” (LFTB, known to its detractors as “pink slime”) in ground beef products is well-known.  And that’s the problem.  If its manufacturers had been proactive in disclosing (and even advertising) its use instead of waiting for others to define the debate, then they may have minimized their risk of huge financial losses.

The purpose of this posting is not to take sides in the “pink slime” vs. “boneless lean beef” debate or to argue that one side’s arguments are more palatable, no pun intended. 

Rather, it is to highlight the importance of labeling, advertising, and promotional practices as part of a proactive risk management program.  That’s why this blog addresses more than just food safety issues; regardless of the product’s purported safety or purity, the key issue appears to be the lack of disclosure to consumers.  Why did it take 20-plus years for consumers to be able to identify what products contain this ingredient?  How could BPI, the largest producer of this product, not have seen this PR train wreck coming?

The irony of industry complaints about how the media have “smeared” the product and its producers’ reputations is that the industry’s wounds are almost entirely self-inflicted.  The producers chose not to disclose the pervasive addition of the product to ground beef, so critics naturally focused on why it was concealed from the public.  Iowa Rep. Steve King called for congressional hearings about the product’s critics, stating “they’ll have an obligation then to explain themselves why they could not base their allegations on facts and what they’ve done to damage an industry.”  However, the congressman failed to address a key issue: if the producers had disclosed these “facts” proactively, there would probably have been no “damage” to the industry.  

Consumers for decades (if not longer) have expected their ground “100 percent beef” to appear this way, not this way.  Similarly, BPI does not have even one picture of its product anywhere on its website or in its YouTube video rebuttals to films like Food Inc.  Its published images portray children enjoying burgers and the high technology used to produce its product.  Its videos feature company officers, a scientist who can’t make eye contact with the camera, and a lobbyist.  The lack of disclosure begs the question of what else might be in food fed to children?

Now, imagine that the companies producing this product had focused proactively on its claimed merits: that it’s a safesustainable, low cost, way to enjoy beef.  Photos of production machinery that looks like an indoor oil refinery just might appeal to the market segment that enjoys products like toxic waste candy.  Perhaps a catchy brand name like “spin safe” ™ could have defined the debate about using centrifuges to separate fat from lean meat.  Most importantly, calls for mandatory labeling of the product would become irrelevant; half of consumers do not read labels anyway

Lesson learned: manage labeling, advertising, and promotional issues proactively.