Taking food safety seriously—from responsibilities to opportunities

Thinking about food safety isn’t very much fun. The details seem overwhelming and the worst-case scenarios are scary. So many questions! Do the Food Safety Modernization Act (FSMA) rules apply to my farm? What do I need to do if they do? What about other state and local food regulations? What do I have to do to comply with those? Most significantly, what should I do to actually prevent an incident?
After all, no farmer wants to get anyone sick, regardless of what the law says.

Farmers’ concerns about food safety are justified. A bad incident can leave a farmer emotionally and financially devastated. What’s more, a single negative incident can damage the reputation of the entire sustainable farming community. Farmers owe it to each other to take food safety seriously.

On the bright side, food safety concerns also present opportunities for sustainable farmers to educate the communities they serve. With foodborne illness outbreaks making headlines, consumers are ever more aware of and concerned about the safety of their food. These sentiments impact their food choices. By taking food safety seriously, farmers have a huge opportunity to attract these diligent,
committed customers. In this way, prioritizing food safety is an opportunity as well as a responsibility.

Bottom line, every farmer should prioritize producing the safest food, first and foremost. Although there are always risks involved in producing and distributing food, careful and conscientious farmers can show their customers that they’re taking food safety seriously.

Understanding food safety liability risks and developing an overall food safety strategy

Still, attention must be paid to the legal aspects of a food safety incident. Accidents can happen to anyone. How can these risks be mitigated? This guide serves to help farmers better understand what the legal risks of a food safety incident are, how to reduce the legal risks, and how to increase the chance of recovery if a food safety incident happens.

The good news is that farmers can take tangible, cost-effective steps to minimize their legal risks. This guide is not meant to be a scare tactic, rather it’s a way for farmers to move out of overwhelm and into making informed decisions and taking strategic, practical steps to address their food safety legal liability concerns.

Moving from thinking about food safety to taking action

Equipped with a deeper understanding of the legal risks of a food safety incident, farmers can better develop an overall food safety strategy that’s suited to their farm. Such a strategy might include getting a food safety plan in place, having a recall protocol, exploring insurance options, learning about and following Good Agricultural Practices (GAP) standards, perhaps even getting GAP certification, looking into and complying with the FSMA rules, researching and following product-specific regulations, and so on.

Having a food safety plan is strongly recommended

It’s incredibly important from a legal perspective to at least have a food safety plan in place. Fundamentally, farms that are effectively implementing food safety plans are less likely to have an incident in the first place. If customers happen to get sick, having a food safety plan puts the farm in a good position to defend itself against any impending lawsuits and enforcement actions.

Actually implementing the food safety plan and maintaining records and documentation is even more essential

The importance of documentation cannot be emphasized enough! A food safety plan that is not followed is worthless. A plan that is being followed, but without the records to prove it, won’t get a farmer very far if an incident were to occur. Maintaining records and documentation can be tedious and take a chunk out of the work day, but it’s absolutely essential when it comes to limiting legal liability risks.

If an incident is tied to the farm, the food safety plan documentation and records will help the farmer isolate the problem, conduct a recall if necessary, and minimize the spread and overall impact. In addition, having both a food safety plan and daily operation records or checklists can go a long way in convincing a court that the problem occurred elsewhere, not on the farm. Similarly, the government is less likely to compel an expensive and cumbersome recall or initiate an enforcement action if the farm has records to show that a robust food safety plan was being followed. Finally, maintaining documentation and records make it easier for the farm to prepare for and adapt to changing circumstances—whether they be increasing regulatory obligations, fluctuating insurance options, or shifts in the terms of a contract.

Be sure to reevaluate your food safety plan—and overall food safety strategy—on an ongoing basis

Farmers are well-advised to carve out some time each year to revisit, improve, and adapt the overall food safety strategy for their farm, of which the food safety plan is just one component.

The food safety plan must be updated as circumstances change: as the farm grows, offers new products, sells into new market channels, adapts to new legal requirements or regulations, and so on. Other components of the overall strategy might include securing insurance coverage, implementing a recall tracking system, following GAP standards, complying with FSMA rules, staying abreast of applicable state and local food safety laws—and so on. What’s working and what’s not? Are systems being followed? A call to the farm’s insurance agent should be part of this annual review. Insurance policies need to be kept up to date, as coverage may shift or adjustments may need to be made from year to year.

What you decide to do is up to you

In the end, the right risk management strategy regarding food safety is a personal decision that depends on you and your farm. Your own financial, emotional, and business considerations all factor into the appropriate strategy for you. This resource can help you understand and assess those factors, and then take action accordingly. With this in mind, specific action points are highlighted after the discussion of each legal risk to help you understand the context, or why taking the suggested steps is significant from a legal perspective. It’s then up to you to decide whether taking that step is relevant or appropriate for your farm.

Limitations of this guide

This guide does not cover the substantive details of food safety practices such as specific GAP standards, FSMA rules, and product-specific regulations. Instead, it offers the broader context of food safety legal liability and illustrates how taking certain action steps and following specific food safety practices can mitigate a farm’s overall legal risks.
In addition, this guide is not an exhaustive discussion of the legal aspects of a food safety incident. It is by no means a substitute for the counsel of a qualified attorney. Rather, it introduces a selection of relevant legal issues and serves as a launching pad for exploring individual risks and management options in more detail. Farmers should take steps to learn more, including discussing their situation with an attorney and an insurance agent.

Now, let’s get started.