How can supermarket operators, venturing into food

How can supermarket operators, venturing into foodservice with home meal replacement, takeout sections, full-service restaurants, fresh service deli departments, branded fast-food counters and catering, protect themselves from lawsuits?

They can't—at least not completely.

"You can never totally insulate yourself," says Peter Kilgore, senior vice president and legal counsel for the National Restaurant Association. "Somebody can always file a claim. The question is whether what you did in a particular circumstance is going to be defendable."

The legal land mines waiting for the unwary are many, ranging from food safety and sanitation to OSHA regulations, the Americans with Disabilities Act (ADA), nutrition labeling and sex discrimination. Concern over these and other issues is growing as more operators move ever further into foodservice. The concerns they are coming to face are in most instances no different from those faced by restaurateurs.

"With respect to foodservice, certainly I would think the issues might be very similar if not identical [for restaurants and supermarkets]," says Kilgore. "Certainly with respect to foodservice, particularly where the food is spoiled, it's hard to imagine where there would necessarily be a difference."

Adds George Green, vice president and general counsel for the Food Marketing Institute, "I would think for the most part they are [the same]. We live in a very litigious society, and food retailers and wholesalers confront that every day of the week in a variety of ways. We think there is a real need to take a whole look at our civil justice system and tort reform, product liability reform, civil justice reform, class action reform. In light of all of that, I wouldn't say that any one department is the most significant or major one that needs to be focused on far beyond the others. But yes, there are issues associated with prepared foods that retailers have to be cognizant of."

Kilgore goes further, noting that "even to the legal mind" the sheer number and complexity of legal issues that arise in foodservice "can be a confusing blur."

"There are tons of [legal issues]," says Arlene Spiegel, president of Market Discoveries, Inc. (Hollis Hills, N.Y.) and a veteran supermarket and restaurant consultant. Supermarkets have "the same board of health issues that they have to comply with" as do restaurants. "They have ADA issues that need to be complied with in terms of if people have to access counters or condiments. They need to address the logistical issues of ingress and egress. In addition to that, they have product liability and they have truth in menu and nutrition issues."



Spiegel says those who view the variety of legal difficulties a supermarket foodservice operation can cause as a mine field are "not overstating it. It is so, so serious today because we're living in a litigious environment where people are ready to pounce, and there are all kinds of very public precedents being set, from spilling coffee on your lap to an older woman saying that she can't wear a mini-skirt. And above and beyond that, you certainly have a responsibility to the public to make sure your place is safe to work and eat in, and that you're complying with all the codes and communicating effectively about how to enjoy the space and/or the food once you get it home."

Among the major issues operators face:

Food Safety "Clearly, if somebody claims they were made sick by eating a particular food ... the initial burden is going to be on the person who makes the claim," says Kilgore. "If that person is unable to substantiate the claim, then obviously there's no liability. On the other hand, if they are able to substantiate that they got sick in some manner from eating food at a restaurant, then obviously the restaurant has to look into the allegation."

"The overriding concern, of course," agrees Green, "is food safety, assuring consumers that the product is safe and protecting them from getting ill—and protecting themselves ultimately from the liability, of course."

Having a formal HACCP (Hazard Analysis and Critical Control Points) or similar program in place to point to in court "certainly would be points in your favor in regard to trying to do your best to protect the public," says Kilgore. Still, "from a litigation standpoint, whatever you do in that sense, of course, would be discoverable from the standpoint of an opposing attorney, and I suppose at some point that might come back to haunt you." In other words, he explains, "They can find out from whoever did testing on food what their tests showed before it was presented in court. Theoretically, if the test showed that there was concern as to whether or not it was spoiled and you went ahead and served it anyway, it's going to be pretty damaging evidence."

"I don't think we encourage our members to look at this as a legal issue," says Green. "This is an issue of good standards and operating procedures, which should be endemic to their operations, to make sure that safety is being ensured." The first aspect of that, he suggests, is to work with buyers to make sure the product coming in is pathogen-free and in compliance with all requirements. "The effort needs to be made to, first of all, comply with all laws, and second of all establish procedures that you can point to show that you've taken reasonable care," he says.

Customers who consume food off premises can easily point a finger at the supermarket operator if they believe it made them sick. Says Kilgore, "Where food is spoiled, that is a very difficult problem. On the other hand, if food has a foreign substance in it ... it becomes a little bit more complex from the grocery store standpoint."

For example, he says, if a piece of glass is found in a fish dish, "that's a problem that's most likely going to be directly assessable" to the foodservice establishment that sold it. "At least they aren't going to be able to get out of that because that's a foreign substance. On the other hand, if someone chokes because they swallowed a bone in a fish that's served at a restaurant, there may or may not be legal liability on the part of the restaurant because that's not a foreign substance but a substance in the fish. It isn't in the same category as a foreign substance."

HMR According to Kilgore, take-out and home meal replacements (HMR) represent "less of a potential problem from the grocery standpoint. I would think the fact that if someone [takes it home], cooks and eats it and then chokes on a bone it would be less of a potential problem than it would be for a restaurant that actually cooks it itself—unless it's advertised as being de-boned." Still, he is quick to point out that take-home food is "not necessarily" always less problematic "because it depends on the particular incident that occurs. The potential legal liability may be identical in both circumstances."

"There's a certain responsibility you have to heat or maintain the temperature of the food properly and package it appropriately for take-away," notes Spiegel. "Once it leaves the premise all you can do is tell people how to best store it and when it's best to serve by." She recommends doing that even if local laws don't make it mandatory "just to protect yourself."

OSHA Regulations Green calls job safety regulations of the Occupational Safety and Health Administration "a huge issue for us. OSHA has become very aggressive, asserting its authority and looking in particular at food retailers and wholesalers. In particular, they're trying to assert jurisdiction over all employers relating to ergonomics. Congress has prohibited them from doing that for this year. We, of course, are very concerned about worker safety, but we think there's simply no scientific consensus on ergonomics injuries and how to address them. Regulation would be way premature."

Concerning OSHA requirements, Spiegel notes, "In foodservice areas you need special non-skid surfaces. You need different drainage. You need to make the place very, very safe. And it's a lot more extensive than just running a deli, because you're now running a restaurant where you'll be doing a lot more cooking as opposed to just kind of assembling and merchandising."

Nutrition Labeling Operators with menus carrying health or nutrition claims have had to basically put up or shut up, thanks to the Food and Drug Administration.

An FDA regulation that went into effect last May requires foodservice operators, including supermarkets, to substantiate health and nutrient claims on menus. They aren't required to supply complete nutrition information, just information about the nutrient related to the claim and then only if the customer specifically requests it. Operators are able to make certain claims only if they have a "reasonable basis" for making them and have documentation on hand for consumers who request it.

ADA Changes may also be coming in the way the Americans with Disabilities Act is interpreted. The sticking point is the definition of "work station" and the turning radius of a wheelchair. Wheelchair-bound employees may need to be given full access to every work station within a kitchen. Add the bureaucracy of the federal government and what some have described as a stigma against anyone who challenges ADA, and the financial and logistical problems ahead could be considerable. In an era in which kitchens are being downsized as much as possible to save money, this could drastically increase kitchen sizes, costing the industry millions.

"I've heard talk of that at various times," notes Terrence Walloch, senior vice president and general counsel for Ralphs Grocery Co. (Compton, Calif.). "There probably are some designs that could be modified without any great economic or practical impediment that should be done, and we totally support people looking at that. On the other hand, to throw everything out and put these artificial restrictions in with heightened limitations on everything probably is not the common sense way to go at this."

The bottom line always has been, and remains even in such litigious times, simply to run the best store you can. "The better you operate the store the less problem you have with lawsuits," concludes Walloch. "Good operators who have a well trained, well staffed work force and have kept their physical equipment and assets in good shape are the ones that have the least risk. The people who would try and make a business out of slips and falls have a hard time when you're on top of your game and you have good looking facilities and employees who are trained and you're following all of your procedures. It's the best protection you can have, I think."