Food Recalls and Litigation

As many parents are all too aware, Canada and the United States are currently experiencing an infant formula shortage. This shortage is largely due to the closure of a large manufacturing plant in the United States due to bacterial contamination that prompted a widespread recall.

In recent years, food product recalls have increasingly given rise to litigation.

Public health authorities only require reasonable grounds for a belief that a product is a threat to health or safety to require a recall. Accordingly, manufacturers typically err on the side of caution when initiating the recall and do so before a thorough investigation is completed. Products that are recalled, after proper analysis, may not actually pose a risk or demonstrate a negative health effect. This wide-ranging recall strategy creates exposure to litigation.

In some of the lawsuits that have succeeded, the consumers have claimed, among other things, that the manufacturer was negligent because it:

  • Failed to reimburse customers who had purchased the product;
  • Failed to warn about a product’s inherently harmful effects; and/or
  • Failed to safely manufacture and test the products.

However, a recall, in and of itself, does not guarantee that a consumer can bring a successful lawsuit against a manufacturer. Even if the manufacturer has breached some duty to their consumer, a consumer will only have a claim if that breach caused them to suffer some damage, such as personal injury or economic loss. If the manufacturer, after learning of the defect or safety concern, promptly issues a recall and offers the consumers fair compensation, an action brought by the consumer may not succeed. This is particularly true if the consumers have not suffered harm beyond a normal inconvenience. This means that manufacturers can reduce their risk of litigation by recalling their products as soon as possible and offering reasonable compensation for that product.

In situations where the food product causes actual personal injury, the consumer will have to prove that the food product in question is the cause of their injury (which, in the case of a food product, is likely a sickness). To assist in proving this, the injured consumer should:

  • See a doctor as soon as possible. This creates a record of when the onset of the injury was.
  • Document what happened and how it happened (timeline of what happened, which days you had to take off work treatment received, etc.)
  • Preserve the packaging and take photographs. The dates the food product was distributed and when it expired, for example, are often pertinent pieces of information.

If you believe you have suffered damages as a result of a food product recall, it is always best to speak with a lawyer about your options.

Written by

Lauren Cullen is an associate lawyer at Siskinds LLP in London, Ontario. She practices exclusively in personal injury litigation and is a member of the Ontario Trial Lawyers Association (OTLA). Lauren completed her law degree at Western University in 2016 and subsequently articled at a top personal injury law firm in Toronto.