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February 17, 2011 01:22 AM UTC

Senator Jahn Sponors Bill to Limit Retail Liability for Tainted Food - Updated

  • 48 Comments
  • by: (((JADodd)))

( – promoted by Colorado Pols)

Updates (2) Below

State Senator Jahn is sponsoring HB 11-1190 – limiting damages against retailers for foodborne illnesses.  The folks over at Food Safety News are reporting that Jahn and Rep. Jerry Sonnenberg have presented the bill but are refusing to say who has put them up to it.  Here is the article (Fortuately, the website allows us a license to reprint it as long as we provide proper attribution.):

A Bid to Limit Retail Liability for Tainted Food by Dan Flynn | Feb 16, 2011

A bill that gets dropped in the hopper at a state legislature often starts out as a mini mystery. Who’s behind it? Where did it really come from?  What is it really trying to accomplish?

Colorado House Bill 11-1190–limiting damages against retailers for foodborne illnesses—is just such a bill. Its sponsors are state Rep. Jerry Sonnenberg and state Sen. Cheri Jahn. And they’re not talking.

Sonnenberg is a farmer-rancher from Colorado’s rural eastern plains and Jahn is a suburban politician from populous Jefferson County. He’s a Republican and she’s a Democrat.

Both serve on their respective chamber’s agriculture committees. He chairs House Ag and she is vice chair of Senate Ag. Food Safety News asked Sonnenberg and Jahn to respond to questions about HB 1190, but neither did so.

As drafted, the bill would greatly limit the liability of food retailers in foodborne illness cases.   It would mean that retailers would be let off from responsibility when their customers get sick unless it could be shown that they were responsible for contamination or had actual knowledge of it at the time of the sale.

Under the doctrine of strict liability, every part of the supply chain is deemed responsible for producing safe food to protect consumers. The Sonnenberg/Jahn bill would provide a “get out of jail free” card for the retail sector.

There is already some confusion about the language of the bill, which has not yet been scheduled for a hearing. The liability limiting language would apply when “jurisdiction cannot be obtained over the manufacturer.”

That has caused some legislative observers to speculate that Lakewood, CO-based Vitamin Cottage Natural Food Markets Inc. might be behind the bill. It was caught up in the 2009 Salmonella outbreak involving Peanut Corporation of America (PCA), and settled litigation after PCA’s bankruptcy.

The 30-store Vitamin Cottage chain, with units in Colorado, New Mexico, and Texas, was grinding organic peanuts from PCA’s Texas facility in early 2009 that were contaminated with Salmonella.  

This is really bad policy.  The deficit chicken hawks in Congress have proposed cutting the Food & Drug Admin.’s budget.  There will be fewer inspectors and fewer inspections.  At the state a local level, budget cuts will limit the number of onsite inspections of all kinds of food processors and retail distributors.  Food safety costs money – hiring people to inspect and clean food before it is sold to you and I – whether in a grocery store or a restaurant – eats into profits.  The threat that a failure to properly inspect or clean food will give rise to significant monetary loss will become the only incentive that food retailer have do their part to ensure the safety of our food supply.

UPDATE: As her constituent, I called Sen. Jahn before I made my post.  I spoke to one of her staff – yes, a live person not an answering machine.  He told me that Sen. Jahn would call me back about the bill.  I have still heard nothing though I have called her office three times this morning.

After spending more time than I can afford, I have been able to confirm through three sources who asked to remain confidental (I am sorry but you will have to take my word for this.) that the HB 11-1190 is being promoted by Vitamin Cottage through its lobbyist Kirsten Thomson.  I have confirmed through records at the Secretary of State’s Office that Ms. Thomson is, in fact, a registered professional lobbyist for Vitamin Cottage.  I both called and e-mailed Ms. Thomson asking her to confirm or deny whether Vitamin Cottage and she are the source of the bill.  I have yet to receive a response.

Apparently, there is an interesting back story about why Vitamin Cottage might be lobbying to get this bill passed.  I have more research to do before I am comfortable writing about it.  So, stay tuned. There will be more to come.

Update No. 2:  I just received a call from Sen. Jahn.  She confirmed that Vitamin Cottage and Kirsten Thomson, its lobbyist, are the source and prime movers behind the bill.  Why you ask – think PCA and peanut butter.

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48 thoughts on “Senator Jahn Sponors Bill to Limit Retail Liability for Tainted Food – Updated”

  1. I’m really asking. Because unless you’re suggesting that stores, individual stores, receiving deliveries test now and would not to avoid liability under this bill, I’m not sure what the problem is. In my mind, if they don’t know about it and didn’t do it, they shouldn’t be liable. If we’re taking away a level of protection that would keep people well, rather than help people sue, that’s a bit different.

    As a diary this needs work.

    1. As it stands now, if you get sick or die from tainted food the law of strict liability makes everyone up the food chain liable to you.  As part of the process, each link in the chain investigates and assigns blame for your injury. Who is in the best position both logistically and financially to investigate and determine where the fault lies?  You – after you have lost work while you’re out sick and spent all you savings on your medical care or the businesses – including the retailers – who make a profit from the food you purchase.  This bill would put the responsibility – including the cost – upon you to prove that the retailer was responsible.  I suspect that you – like most consumers – would lack the resources.

      Yes, in part, it is about suing. With the cutbacks in governmental food safety programs, the only incentives that businesses have to do their part to protect our food safety is the threat that they can be sued.  This bill would make it hard, if not impossible, to sue the retailer. Therefore, the retailer has less incentive to protect our food supply.

      You start by simply throwing out old, spoiled food – one major grocer I know sells packaged lettuce which is brown and slimey. Next, you store it at an appropriate temperature even if it does not necessarily deplay well. Third, you make sure that food is not spoiled by having someone who knows what he is doing inspect it. Fourth, you wash all fresh food, even if it comes in a package that says that it was pre-washed. I think I am stating the obvious. However, you would be surprised how many establishments don’t get it – they don’t even bother to get rid of the roaches and rodents in the kitchen.  This list would include some high end restaurants and big chain stores.

            1. … and he missed his social skill check.

              The retailer is responsible in part because they have control over the storage of the food while it is on their shelves, in their warehouses, or on their trucks, and they can choose to remove it from the distribution chain at any time once it’s in their control.

              At present, if you’re affected by food-borne illness, you (or the food safety department) sue pretty much everyone in the chain of production for that food.  In the process of going to trial, everyone figures out where the contamination originated and who should have reasonably caught on to it.  Blame is assigned proportionally, and damages come out from each party in those proportions.

              This bill would apparently, according to the diarist, alter that balance, allowing the retailers to skip out of the trial unless it could be proven that they deserve the blame in advance.

            1. Perhaps, I was too obtuse.

              Droll’s “good points” are nothing more than red herrings.  The steps that retailers need to use to protect the food supply are simple – but time consuming and labor intensive. They cost money – ergo, they eat profits. We don’t need any magic test or technological toy. At the first level, food safety merely requires the application of common sense and common decency – qualities that are sadly lacking in today’s business community. Let me give you an example.

              Back in the day, I worked in the food industry – at a restaurant.  The health department regulations required all meat to be kept at no greater that 35 degrees until it was cooked.  The retailer I worked for did not want to buy a cooled storage unit near to cooking area and did not want the cooks or anyone else spending the time to go all the way back to the cooler.  So, the meat he thought would be used during any lunch or dinner would be piled on an aluminum tray and set on the counter next to the grill for as long as 3 hours in temperatures that often reached 90 to 95 degrees.  Any unused meat would be returned to the cooler and used for the next meal.

              Yes, droll, this is a serious food safety problem. And, none of the customers knew this was going on so, they did not have the information to make the rational choice to eat somewhere else.

              Wait – it gets better.  Somehow ;-), the health department found out what was going on.  They cited the retailer and ordered him to get rid of all the meat that had been left out or come in contact with that meat.  The inspector stood there and watched as the meat was thrown in the trash.  As soon as the inspector left, the retailer ordered the busboy to retrieve the meat from the trash and put it back in the cooler.  It was served to unknowing customers the next day.

              And, yes, David and Phoenix, this kind of thing happens everyday.  That’s why I say it is not rocket science. Yet, Sen. Jahn’s bill would let retailers off the hook.

              We would all prefer that steps were taken to ensure the safety of our food supply before anyone got poisoned. However, the food industry lobbies at both the federal and state level have apparently succeeded in convincing the deficit chicken hawks that cuts in food safety programs are a good way to “balance the budget.” If they are successful – and they already have been to a degree – these efforts to protect the food supply will essentially be gone. What will be left is mere window dressing.

              Then, the only thing we will have to make sure that businesses – including retailers -protect the food supply is the big stick. Feed us tainted food and you will pay dearly.  This concept of negative reinforcement has been the corner stone of both our criminal and civil law for more than 600 years.  

              1. would be liable and not excused from any legal remedy.

                When you take the case of the tainted spinach, the store or restaurant can’t test it and didn’t have any control over it. I can see why the lawyers think it’s great, but I’m unclear on why when the source is clearly known a bunch of stores have to foot a legal bill.

                I also have to point out that not every possible illness can be washed out of food. So stop saying that like it’s God’s own answer.

                You still haven’t answered any of my questions and have continued to be an ass about it. It’s not ad hominem, it’s true.

                Try again, or have we found the beej of the left?

                1. WitnessProtection down below offers a good explanation of the current system – everyone gets assigned proportional blame, determined during the trial process.

                  This bill seeks to exempt the retailers from the process unless someone determines – essentially at their own expense and without the legal means of helping their investigation – that the store was explicitly at fault.  But it doesn’t seek to exempt the victim, or the distributor, or the producer – just the retailer.

                  If we want to switch to a different liability system in total, then while I may not agree with that decision, it’s a perfectly legitimate bill to consider.  But exempting one element in the chain is preferential and the bill should be tossed with extreme prejudice.

                2. is that often the best (or only) investigative ability anybody has to pinpoint contamination is through discovery in a lawsuit. Eliminating one potential party in the chain is a bad idea. It’s also a disincentive for retailers to continue with best practices in storage and preparation since health inspections are waaaaay down due to budget cuts, and in many counties a surprise health inspection occurs only when a complaint is filed.

                  If a store or restaurant is faced with a lawsuit for making somebody sick and it’s not their fault, they’re damned well going to put resources into tracking down the supplier and suing the bastard as well for making their customers sick- plus court costs, damages, etc.

                  This bill actually creates problems for retailers and others in the food supply chain by muddying ability to place the blame on a single component in that chain. For example, one grocery store could be the source of a load of contaminated meat and the increased bar of finding direct fault in the retailer means that lawyers will look further up the chain first.

                  Headline: Lawsuit Filed in Federal District Court Against Meat Packer Over Tainted Beef

                  In the end, the actual source would get tracked down (perhaps much) later and have the full legal force of a pissed off industry aimed squarely at them as uncertainty over tainted meat (or whatever) affects sales.

            2. And MADCO and jadodd for information and rational comments.

              I will be letting Safeway know that the “food” dollars I spend in their stores will cease as of now, and until I find out that they really care more about their customers’ health than just their bottom line.  

              Yeah, I know.  Corporations can’t, by their very definition, care about anything but their bottom line.  That’s why most rational people don’t want government to go away.

              Remember the e-coli outbreaks of recent years, and the deaths of children that resulted.  People were screaming about the government not doing enough, not doing it soon enough, etc.

              This is bad legislation, and “right to poison bill” is a good name for it.  And no, I, for one,  don’t want expired food, esp. meat, sold, period.  Sure, warn people.  In this economy, there will be people in dire straits who will buy that food because it’s cheaper.  And they and their children–and our ERs–will pay the price.  While the grocery chain makes a little more profit.

              Bad tradeoff.

              2. Back to my original question: Does this bill give stores reason to stop testing? Do local stores test?

                Grocery stores often operate in a slightly different way than other types of retailers. Frito Lay often delivers and stocks their own food. Safeway never touches the product. Are you suggesting that they should be opening bags and testing?

                Is there language missing about when a retailer should be “let off the hook”? If so, could the bill be amended?

                Sorry for the ad hominem. I’m still really asking.

                1. I worked at a grocery store for quite a while when I was younger, so I’m pretty familiar with the various processes.

                  Sure, the chip vendors, soda vendors, and usually dairy vendor all deliver separately, and usually stock their shelves separately, too, leaving just a maintenance supply for the grocer.  Dairy (and sometimes fruit) is a bit different – the retailer usually maintains the stock there, even though an external vendor may do delivery.  But even in these cases, the retailer still should be checking the stock expiration dates now and again; retailers shouldn’t be looking to their customers to report expired stock – it makes them look bad.  And with dairy products, not only do you check the expiration, but also the condition of the merchandise.

                  The rest of the store is all yours.  It’s your job to maintain the shelves, check the status of your freezers and coolers, see that the deli and meat departments are run cleanly…  The retailer has many points of potential liability.

            3. Cute.  I’ll remember that little insult when you get on your next rant against the DoR.  You won’t mind if I use it to denigrate you and your concerns, I’m sure.

      1. St. Sen. Don MacManus (D-Denver) introduced a bill that would allow grocery stores to sell food products past the expiration date at a reduced price. The bill passed the senate but when it arrived on the floor of the House, St. Rep. Chuck Howe (D-Boulder) went to the microphone and told the House the bill title should be changed to the “Right to Poison Bill.” After his speech, the bill was defeated and killed on the House floor.

        1. Because there are stores that do that. There’s one I’ve been in called The Friday Store that I’m pretty sure that’s their whole gig. And good on ’em if you ask me — less food wasted and buyer knows they need to be extra vigilant for signs of going bad.

          1. When it makes you sick or kills you.  Then it’s just poison.

            How do consumers know the difference?

            Do we want practical, enforceable, enforced safety standards or do we allow a market solution to kill those most willing (required) to buy cheap food?

            Why stop with food? How about cars? Home products like insulation and smoke detectors?  Helmets? Ski lifts? Elevators? Tires? Pharmaceuticals?  and a thousand other things for which the market solution would necessitate injuries and death, preventable but allowed.

            I am sure thethinker will be able to blame this on illegal immigrants, and I’m sure EmeraldKnight will be able to blame it on some racial or ethnic stereotype.  LB can blame unions.  Dwyer can blame Boyles and the R media.

            But safety should be nonpartisan.

            1. But for a lot of products, the expiration dates mandated don’t have a lot to do with when the food is actually usable. I don’t like the idea of having expired food available at a discount in regular grocery stores, but ‘grocery salvage’ stores like the one I’m thinking of don’t seem to have a record of causing much foodborne illness.  

              1. True, expiration dates are guesses that err on the side of caution and assume that there is some safe time after purchase date for consuming the product.  But the dates are established as a guarantee that the product is safe at the time you buy it, whether or not it may actually be safe for much longer, and I don’t think people who are economically stressed ought to be subject to pressure by their circumstances to take more risk than the better off.  I agree with Madco’s questioning where it should stop.  

                1. Everyone I know who shops at The Friday Store in Arvada is more “hippie who feels good about preventing waste” than “economically stressed.” It takes some research to find the place and I don’t think they advertise. I’d have a problem with expired food in regular grocery stores where it’s presented as just a cheaper alternative to unexpired products.

                  But honestly, the first year I was on my own I had a few times where I made a visit to my college’s food bank, and they took expired food if it was the kind of thing (like cereal or meat that’s been frozen solid continuously) that can be used after it’s out of date. So, people who are in a tight spot financially are already able to choose to accept expired food under some circumstances, and nobody accuses food banks of poisoning people.

                    1. Both definitely have some expired food. The Friday Store also seems to have a lot that’s just close, and some stuff that was simply overstocked in major groceries. It’s not mostly staples — those sell too fast to expire. I’ve found weird stuff like goat milk butter (YUM) and lots of fancy cheeses there. One time they had a big bin of those “love letters” chocolate bars for $1 each that were a few days expired but tasted fine.  

                    2. Haven’t found right source yet but found lots that leads me to believe I’m mistaken.  I personally wouldn’t contribute expired items.  Seems very disrespectful.

                    3. “This isn’t good enough for me, but it’s good enough for the people who need a food bank.”

                      However, I don’t think most expired donations really come from individuals–I think it’s mostly grocery stores contributing big batches that are a day or two out of date.  

                    6. Little old church ladies, people with huge hearts who have seen so much misery they cannot throw things away, formerly homeless people who stick around to help out, etc.

                      I worked at a crisis center for a few years a long, long time ago, in another state. We used to get expired tofu donated, and we served it sometimes when we were desperate. Why? There was nothing else. Law or no law, if someone’s starving, you consider anything. And yes, expired tofu tastes bitter. You get some of the bitterness out by boiling it. (It was nasty.)

                      And people ate it because they were hungry.

  4. “Monitoring”

    DENVER METRO CHAMBER OF COMMERCE

    COLORADO RETAIL COUNCIL

    SAFEWAY

    “Opposed”

    COLORADO TRIAL LAWYERS ASSOCIATION

    Pardon the caps, it’s copy and paste from the SoS Lobbyist Search page.

    2. House Judiciary.  Next Tuesday, 2/22, 1:30 PM, HCR107

      Judiciary Committee Members:

      Bob Gardner, Chair

      Mark Barker, Vice-Chair

      Brian DelGrosso

      Pete Lee

      Su Ryden

      Crisanta Duran

      Claire Levy  

      Jerry Sonnenberg

      Daniel Kagan

      B.J. Nikkel  

      Mark Waller

      I say it sails through.  What’s an appropriate over/under on how many votes it gets?

    3. Apparently, Vitamin Cottage is also lobbying for the bill.  However, Kirsten Thomson, Vitamin Cottage’s lobbyist, has not yet reported this to the Secretary of State. In fact, she has filed her Febrary Report already (due by March 15) and the month is barely half over.  Very interesting.

        1. she did anything illegal. But, is it possible that she filed her February report early so she could avoid Vitamin Cottage’s connection to this bill until after the hearing before the House Judiciary Committee. Would be a nifty way to keep Vitamin Cottage and its problems from being connected to the bill.

  5. 1.  Creating an immunity (or cap to a lesser extent) does not eliminate the cost of that harm, it just shifts it on to the individual who experienced.

    Because Colorado does not have joint and several liability each individual is assigned their discrete piece of liability, including the person who experienced the harm (i.e. you were the person who got hurt, but you ate your burger medium rare and you should know that they are only safe if you cook them all the way through so you are 20% negligent) in what is commonly called comparative negligence.

    When you create an immunity what you have said is that if you hurt someone, you have no responsibility for your actions, as a matter of law.

    That causes a strange effect where every other party that might bear some responsibility starts pointing at the immune party (i.e. the meat processor says it was the retailer or the Chinese poison formula producer point at the retailer) because even if the immune party does not have any financial exposure.

    But here is where it gets weird.  Everyone is singing the same song (the immune party did it), but you can’t tell the jury the immune party is immune, even though the immunity may bias companies that may have liabilities recollection of events.

    Juries think they have held someone accountable and that a victim receives compensation, but nothing of the kind happens when there is an immune party.

    2.  immunities increase bad behavior.  When someone knows they have no risk they take more chances.  The retailers if given immunity will have no incentive to police themselves because the government has removed any consequences of their actions.  A rational corporate actor seeks to maximize profits and if their is no potential risk of selling poisoned food, what is a rational profit maximizing actor to do? Sell poisoned food.

    And to CP who is focused on expiration date food, I respond “I buy near expiration date food as well” and people are free to do so under the current system.  When they inform you that it is near expiration date they are correctly shifting some, but not all, of the comparative negligence on to the consumer.  This bill would shift it all on to the consumer, even if the cause of the harm is unrelated to the expiration date.  I may be ok with meat that is near its expiration, but I still want the butcher to wash his hands when he goes to the bathroom.

    1. If the butcher’s lack of clean hands makes you sick, and you can prove that (food poisoning is difficult to prove in any circumstances), then they aren’t immune at all. To any degree.

      If the issue is who decides if there’s not enough proof or something else, feel free to point it out.

      1. negligence is the normal standard.

        This is like saying i didn’t know I was going to get in to a car accident so I am not responsible for my actions.

        Strict liability was created for use in civil contexts because the consumer is in no position to protect themselves from problems in the production chain.  Earlier you make some points about prepackaged foods that are well taken because they can not test the packaged food. But the problem in those cased was retailers either not dealing with financially sound vendors or being properly insured which caused a cost shift to the retailer. Now the retailers want to make a cost shift to consumers.  Should consumers bare the costs in those situations even though the retailer is in a better position to evaluate the financial health of their own vendor?

        You are correct to point out that the goal isn’t strict immunity, it is to create an impossibly high standard to frustrate discovery and to have a barrier closer to a criminal standard (actual knowledge as opposed to negligence).

        My analysis of the cost shifting effect and behavioral impact are still fundamentally sound.

        1. I’m just seeing a bit too much “if you’re against this bill, you’re for pedophiles!”

          What the bill actually does and how the language works and may be fixed are what I was interested in.

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