Health Law

William Marler Oped - If I were a CEO of the Salmonella Egg producer, what would I do?

By Bill Marler

Imagine that the phone call comes or an email pops into your inbox--"Sir, we have been contacted by (you pick: CDC, FDA, USDA, or a state or local health department), and they say your product (lettuce, raw milk, a frozen dinner or now eggs) has been linked to illnesses. What do we do?"

So, what do you do?

After being involved in every major (and a few minor) food poisoning outbreaks since the Jack in the Box outbreak of 1993, I have seen it all. I have seen good CEOs act badly and make their and their company's problems worse and I have seen bad CEOs handle the outbreak with such aplomb that they become associated with both food safety and good PR. So, what do you do?

Of course, it is always best to avoid the outbreak to begin with. When I have spoken to CEOs or their Boards--generally, pre-outbreak and pre-lawsuit--I always pitch them on "why it is a bad idea to poison your customers." Putting safe food as the primary goal--yes, alas, even before profits--will (absent an error) give you a very, very good chance of never seeing me on the other side of a courtroom.

But, what if despite your best efforts, or what if you simply did not care, and an outbreak happens, what do you do?

First, have a pre-existing relationship with the folks that regulate you. If someone holds your business in the palm of his or her hand, you should at least be on a first name basis. No, I am not suggesting that you can influence your way out of the outbreak, but knowing who is telling you that your company has a problem allows you the ability to get and understand the facts. Do regulators and their investigators make mistakes? Perhaps, but not very often and not often enough to waste time arguing that your company did not poison customers.

Second, stop production of the implicated product and initiate a recall of all products at risk immediately. This procedure should have been practiced, and practiced, and practiced before. All possibly implicated suppliers should be alerted and all retailers should be offered assistance. Consumers need to be engaged too. The goal now is to get poisoned product out of the marketplace and certainly out of the homes of consumers.

Third, launch your own investigation with two approaches, and at the same time. Are the regulators correct? And, what went wrong? Tell everyone to save all documents (you have to anyway). The goal here is to get things right. If it really is not your product, what has happened is bad, but survivable. If it really was your product, then learning what happened helps make sure it is likely to never happen again. More than anything, be transparent. Tell everyone what you find--good or bad.

Fourth, assuming that the outbreak is in fact your fault, publicly admit it. If it is not your fault, then fight it. However, pretending that you are innocent when you are actually at fault will get you nowhere. Asking for forgiveness is not a bad thing when you have something to be forgiven for. Saying you are sorry is not wrong when you are in fact wrong.

Fifth, do not blame your customers. If you food has a pathogen it is not your customers responsibility to handle it like it will likely kill them or a member of their family. Hoping that the consumer will fix your mistake takes your eye off of avoiding the mistake in the first place.

Sixth, reach out to your customers and consumers who have been harmed. Offering to pay legitimate losses will save money and your company's reputation in the long run.

Seventh, teach all what you have learned. Do not hide what you have learned. Make your knowledge freely available so we all limit the risk that something similar will happen again.

Yes, you can do all of the above and still get sued. And, I might be the one to sue you. Yet, companies who have followed the above find their passage through an outbreak, recall, and litigation temporary. The companies that struggle for unfounded reasons will seldom exist in the long run, or they will simply pay me more money.

Full post as published by Food Poison Blog on August 21, 2010 (boomark / email).