Related Practices

Contaminated Flour – Is Nothing Sacred?

As of August 1, 2016, General Mills had voluntarily recalled some 45 million pounds of several types of raw flour products because E.coli bacteria had allegedly been found in flour produced at the General Mills plant in Kansas City, Missouri. This is the first reported case of foodborne illness attributed to raw flour.  At last report, 46 people in over 21 states had become ill as a result of use of the contaminated flour. The E.coli bacteria emit a toxin which causes illness that is typically limited in terms of both symptoms (diarrhea and abdominal cramping) and duration (up to a week). In some cases severe illness, including kidney failure, can result. At last count, 13 people had been hospitalized, one person had developed kidney failure, but no one had died.

General Mills first began recalling some of its raw flour on May 31, 2016 after investigation by the Centers for Disease Control and Prevention (CDC) had linked E.coli-caused illness dating back to at least December 2015 to persons using flour just before becoming ill.  People were still becoming ill as of the end of June 2016. Investigation as to how the raw flour became contaminated continues and is being conducted by General Mills, the CDC, the U.S. Food and Drug Administration (FDA), and state and local officials. A current theory is that the wheat from which the flour was refined was grown in open fields that contained animal feces, a common source of E.coli bacteria.  Because flour is considered to be a raw agricultural product as defined in the United States Federal Food, Drug, and Cosmetic Act (“any food in its raw or natural state”), flour is not required to undergo any pre-supply treatment for E.coli or other pathogens. It is left up to the raw food user to cook raw food so as to kill any pathogens present in the food before consumption.  So why didn’t the victims of this outbreak only use the flour in recipes that would first be cooked before consumption?  One suspected source of the outbreak is the pre-baking sampling of raw cookie dough or other batter.  Raw cookie dough or batter can be hard to resist despite the warning of many a Mom: “Don’t eat that or you’ll get sick.” Apparently, Mom was right, although Mom was probably thinking about getting sick from eating raw eggs, rather than raw flour.

So what can and should a food supplier like General Mills do in response to a foodborne illness outbreak situation? A look at the page titled “General Mills flour recall consumer information” (http://www.generalmills.com/flour) will provide you with a good example of the type of immediate and ongoing communications to consumers that the supplier should engage in.  Typically, the supplier should (1) immediately inform the public and start a voluntary recall of the suspected contaminated products, (2) offer replacement products or refunds to purchasers, (3) work with federal, state and local officials regarding investigation and confirmation of the source of the contamination and the remedy, and (4) explore how to pay for the substantial costs the supplier will incur as a result of (1) through (3). As to how to pay these costs, the supplier should look further down the chain of supply of the food to see who might be responsible for the contamination, and then determine whether the supplier could have the benefit of an indemnity/hold harmless agreement entered into with the responsible party or was added as an additional insured on applicable insurance maintained by the responsible party. The supplier must also look at its own first party loss and third party liability insurance policies. General Mills is likely to have maintained some type of product recall, withdrawal, and/or contamination coverage.  This type of coverage is specifically designed to financially protect a business in the food commerce chain. It usually applies to accidental contamination situations and affords some coverage for the insured supplier’s costs incurred regarding the recall, income replacement, product testing and destruction, and brand rehabilitation and public relations.