What Role Does a Food Lawyer Play in a Product Recall?

A lawyer can shape many of the decisions made during the critical phases of a recall. Though every recall is different, in response to a crisis we take the following steps immediately:

  • Retain the services of a food safety expert and other outside consultants on behalf of the client, so that our attorney-client privilege covers the advice they give.
  • Advise the company’s internal Recall Committee on the appropriate recall classification, whether the recall is a Class 1, Class 2, or Class 3 recall.
  • Advise the recall committee on whether or not to issue the recall.
  • Work with regulators to pare-down the scope of the recall to an extent no greater than necessary to fulfill the public health mandate.

What Happens After the Recall?

In the short term, the expected result of a recall is to immediately safeguard public health. In the weeks and months that follow the recall, we perform financial damage control for the client:

  • Address causality within the supply chain, if possible, to up-stream suppliers of product inputs or to third-party processors such as co-packers.
  • Aggressively seek compensation for recall expenses by leveraging the indemnification clauses of supplier and co-packer agreements.
  • Review the company’s insurance policies to determine which recall costs, if any, are covered by insurance carriers.
  • Interface with insurance carriers to maximize the policy payout for covered losses.

Damage control is significantly easier for those clients who have taken some the steps to build resiliency that we described on our Product Recall Mitigation Strategies page.

Why is Tone Important?

Throughout the recall process, the tone of every outbound communication is critical. Every communication must be carefully considered in light of the immediate mandates of the recall as well as the long-term viability of the company. All communication must be accurate, effective, and concise, but should not expose the company to any more liability than necessary to conduct the recall. This is a sensitive balancing act, and it is not intuitive.

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