Everyday there’s a recall of a certain food item; the reasons vary – whether it’s because of undeclared allergens, problems with labeling, or some other issue.  But, how can you call a food product “defective?” Courts have struggled with this distinction, but it important, because if a food product is defective, the producer of the food could be sued for their defective product.

Foreign Item In Food Can Lead To Large Lawsuits

The one area that courts have seemed to agree upon is that between foreign and natural materials in food.  When there is a foreign material in food (like a piece of metal in a piece of bologna), the producer is strictly liable.  Compare this to the failure of a company to remove a naturally-occurring substance from the food, like a pit in a cherry.  For example, if a Mexican restaurant serves an enchilada that has a chicken bone in it, the court would not allow the person to sue for a defective product since the chicken bone “is natural to the preparation of the food served, and therefore was reasonably expected…”

Every year, many lawsuits are lodged against fast food companies.  They range from meat in vegetarian items to appendages in meals.  However, many of these companies vigorously investigate claims of a defective product.  For example, a woman in Ohio claimed that she found a thumb in her chili while dining at Wendys.  Clearly, a thumb should never be in a bowl of chili and if the thumb was placed into the chili by Wendys or an employee a lawsuit would be warranted. However, as it turns out, the woman placed the thumb in her chili in an attempt to receive a large settlement.

Should Consumers Expect Problems With Their Food?

If the producer isn’t responsible for items in food served or sold, then who is?  Many courts have examined whether it is reasonable for a consumer to expect the item to contain the object in question.  Should a consumer expect that a large can of olives might contain pits?  Probably.  Should a consumer expect that there is a large chicken bone in a bowl of vegetarian soup?  Probably not.  The bottom line for most courts will be whether the consumer is able to avoid injury.  If they have no choice but to suffer an injury, then they will likely succeed in a lawsuit.