Food safety, liability, and the right to know
Variations on an autocratic theme
Source of Article: http://blog.nj.com/njv_linda_stamato/2009/01/food_safety_liability_and_the.html
Posted by Linda Stamato January 30, 2009 10:40AM
Next time you read a diatribe against regulation, the U.S. civil courts (and product liability
litigation), consider what life is like for those
who suffer injuries in China.
For that matter, wonder about the progress made in the Peoples' Republic
while considering what happens when a product made there causes injury and
the manufacturing company and its government conspire, essentially, to deny
you, a citizen, access to the courts for redress, not to mention the failure,
in the first place, to provide for the safety of your food and to inform the
public of potential harm when it becomes known.
In mid November, I wrote a blog, "Toxic milk and poisoned babies:
Product liability limits in China,"
that raised questions about consumer
protection laws, regulation, and access to courts in China."
This sequel, a policy commentary, is an update as well.
The Chinese courts are still denying access to the would-be litigants, the
families of those harmed and killed by melamine-tainted
products, but the Sanlu company, one of the
largest dairy companies in China, even though it is now in bankruptcy
proceedings, has offered to pay the parents of a baby who died last May from
drinking tainted milk formula $29,200 to compensate them for the loss of
their child. The parents have accepted.
Five other babies have died and, while data is released
only by permission of the Chinese Ministry of Health, so some consider the
data suspect, some 300,000 children have reportedly been sickened by tainted
dairy products and more than 800 remain hospitalized with various kidney and
urinary tract problems.
Regulation in China?
Not much. Instead, we have government and company complicity: There is no
financial penalty for those who produce shoddy goods from the Communist
Party's legal system and, to make matters worse, regulators often fail to do
their jobs. News regarding problems with products is suppressed and life is
supposed to go on. Except, of course, when Chinese officials have to deal
with one of the worst food safety scandals in decades, prompting a global
recall of Chinese-made dairy products, shaking consumer confidence and
devastating the nation's diary industry.
Then the criminal courts become engaged. In 2007, after earlier
product-safety scandals, the head of China's State Food and Drug
Administration was executed after he was found guilty of corruption and
dereliction of duty as a regulator. And, more recently, 21 individuals were
tried and, in at least two instances, men have been sentenced to death for
endangering public safety, and a woman, the former manager and chairwoman of Sanlu, received a life sentence, according to the
state-run news media and published in the New York
Times: "China Plans to Execute 2 in Scandal Over Milk." Several
others received life sentences, still others five to 15 years in prison.
The Times reported that outside the court (where the executives at Sanlu were sentenced), parents of some victims protested,
saying they were dissatisfied with the verdicts. "I feel sorry for them,
but they are just scapegoats," said one protestor, "The ones who
should take the responsibility are the government."
And, still, no Chinese court will take up a single case from citizens. A
few parents are very vocally rejecting the payment offers, the New
York Times reports. Among them are a group that gathered 250 signatures
from victims' families and is demanding long-term health care for the victims
and medical research into their continuing illnesses.
With the government and the companies, together, resisting involvement of
the courts, the likelihood of securing these objectives appears remote. Such
is the case when courts are extensions of government not independent of them:
In China courts are "passive pawns in the party's efforts to handle big
disputes behind closed doors." (International
Herald Tribune: "Lawsuits unlikely over toxic milk: China
discourages action in the courts" October 17, 2008). According to Edward
Wong, whose byline appears, officials routinely favor producers over
consumers and rarely hold companies or their shareholders accountable even in
major cases of malfeasance. Product liability lawsuits remain difficult to
file and harder still to win, especially if the company involved has state
ownership or close connections to officials who also oversee the courts.
Highly visible lawsuits are seen by the Chinese government as political
threats and, as a result, officials go to great lengths to silence the
plaintiffs rather than allowing the "wheels of justice to turn." A
full airing of the cases in courts would set legal precedents and help deter
future misbehavior by big companies or individuals, but "government
officials are quietly pressuring everyone involved, from the parents to the
lawyers to the judges, to drop the issue," according to reports Wong
obtained from legal scholars and lawyers who volunteered to help the parents.
Parents and lawyers in the milk cases have been told by government
officials that their complaints can be resolved through out-of-court
compensation payments. At least 3,000 families have accepted compensation
payments. Some parents, though, have filed
lawsuits against the companies even though the courts have refused to
accept the cases. One, on behalf of the families of 213 children, is being
brought by a group of volunteer lawyers.
offer which is to be financed by 22 dairy companies,
provides about $29,000 for each family that lost a child and about $4,400 for
each child who suffered serious kidney damage. The families of children with
relatively minor health problems would receive about $290. That is about
three months of the average worker's salary. Among those refusing to accept
the compensation offer is Zhao Lianhai, 37, the
father of a 4-year-old boy made ill by the milk, who said the $160 million
compensation plan announced last month was inadequate and failed to address
the medical needs of children whose health had been profoundly damaged.
"Our biggest demand is not the compensation, but medical treatment
and academic research on the influence that melamine will have on the health
of our children," Mr. Zhao, a former journalist, said in the Times'
interview. "We want to know what kinds of lives our children will
face." (See more coverage in the chinadigialtimes).
But, consider what has happened to those who have objected to the
government's offer. On Jan. 1, five people, including Mr. Zhao, were detained
by the authorities shortly before they were anticipating holding a news
conference in Beijing.
They were held overnight and released. And, Mr. Zhao said that the parents
posted a version of their letter online demanding greater compensation, but
that it was blocked by government censors.
Meanwhile, here in the United
States, a food-related scare
is taking shape with respect to a staple in the American diet: peanut butter.
Here, though, federal health officials appear on top of the salmonella
problem and are involving the Centers for Disease Control and Prevention as
well as the Food and Drug Administration's food
More than 500 people in 43 states have been sickened, with 90 reportedly
hospitalized. At least eight deaths have been linked to the outbreak
All suspect products have been recalled. And investigations have revealed
a sorry picture of contamination at the primary plant in Georgia and
failure on the part of the state's Department of Agriculture regulators to
take appropriate action. The nation's Justice Department has already been
asked to conduct a criminal investigation and several members of Congress
proposed legislation to increase safety requirements for food makers and to
give F.D.A. officials greater authority and money to conduct inspections.
"Every Peanut Product from Ga. Plant
Recalled" in the Washington
Problems can certainly occur in the U.S. food-protection system, and,
it is essential to maintain a regulatory network to prevent and, when needed,
to take action to remove tainted food products. Regular inspections need to
occur; it's clear that food safety must be heavily regulated. As it is now,
public information is made available; warnings are issued by federal health
officials; citizens are advised to avoid certain products. Companies are told
to remove suspect items from store shelves; companies and their distributors
comply. The FDA has created a searchable list of recalled products and brands
on the agency's website.
And, citizens, harmed by products, have recourse to courts for civil
damages and we have criminal courts to prosecute where negligence may have
occurred. Citizens have a basis to believe that food is safe in America.
Well, with its compensation plan and the sentences--21 to date--of those held
responsible for the melamine scandal, the government is clearly bidding to
put an end to the crisis. Without solid regulation and access to courts,
is a long way from doing things right--protecting its citizens, regulating
its food industries, and providing open access to information and access to
courts if products harm people--a fairly good incentive to produce food
Those who would assail the U.S.
system ought to consider how well it serves us. We have a reasonably
effective regulatory system (despite eight years of efforts to reduce the
efficacy of the F.D.A.) but we also have a sound tort system that provides
for sanctions, often severe, to be assessed on companies that manufacture or
market products that hurt people. Before we seek to change it, consider
carefully what it does for us and what can happen instead when politics (and
ideology) trump law, policy and consumer protection.