For food and beverage businesses, keeping the health and safety of consumers a priority while carefully managing outbound communications are of the utmost importance during a recall. It is extremely difficult to talk a regulator out of “suggesting” a recall of your product, but there are plenty of strategies to implement that can soften the landing.
Why You Need a Food Recall Lawyer
A lawyer can shape many of the decisions made during the critical phases of a recall. Though every recall is different, 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.
- Retain the services of independent laboratories that can verify adverse test results, again so that the results are covered by our attorney-client privilege.
- 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 Should You Do After a Food 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, our recall lawyers perform financial damage control for the client by:
- Addressing causality within the supply chain, if possible, to identify up-stream suppliers of product inputs or to third-party processors such as co-packers that are responsible for the recall.
- Aggressively seeking compensation for recall expenses by leveraging the indemnification clauses of our supplier and co-packer agreements.
- Reviewing the company’s insurance policies to determine which recall costs, if any, are covered by insurance carriers.
- Interfacing with insurance carriers to maximize the policy payout for covered losses.
- Pass all relevant communications through a committee composed of a public relations professional, production staff, a food safety expert, company principals, and an attorney.
Damage control is significantly easier for clients who take steps to build the kind of resiliency we describe on our Product Recall Mitigation Strategies page.
Why Messaging Matters During a Recall
Public relations is absolutely critical during a recall. A press release is an FDA mandated first step towards safeguarding public health. But that is only the beginning – supply chain partners and customers will soon be calling with questions and concerns about their health and safety. Every outbound communication must be carefully considered in light of the immediate mandates of the recall as well as the long-term viability of the company and its reputation. 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. One of our attorneys screens all outbound communications from the start of the recall until things cool down.
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