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Public Policy

Food Safety Audit Firms May be Held Liable for Consumer Injuries Resulting from Negligent Inspections

A food safety audit firm can be held to answer in court for claims that its negligence in performing an audit led to the sale of contaminated food and the subsequent injury, or death, of a consumer of that food. If ultimately found liable, the food safety audit firm would be required to pay damages to persons injured due to its negligence.

Recently, a federal district court refused to dismiss a suit against Primus Labs, a food safety audit firm, arising from the sale of listeria contaminated cantaloupe by Jensen Farms.[1] Primus Labs was hired to audit the facilities and procedures used at Jensen Farms to ensure that they met applicable health and cleanliness standards and that the cantaloupes were fit for human consumption, and not contaminated by lethal pathogens. Certification by Primus Labs was required before Jensen could sell its cantaloupe to Frontera Produce, the buyer. Primus Labs gave Jensen Farms a “superior” rating shortly before the facility was found by FDA to be the source of a multistate outbreak of Listeria monocytogenes that resulted in 147 persons infected and 33 deaths.[2]

The Court found that Primus Labs owed a duty to consumers because their agreement to perform the audits indicated their intent to ensure that Jensen Farms cantaloupe was safe for human consumption. The Court ruled that it was reasonably foreseeable that injury would result from a negligent inspection. In addition, the Court stated that public policy supports finding that Primus Labs had a duty to consumers because non-negligent audits of agricultural facilities should be encouraged. The Court then found that sufficient facts had been alleged to raise an issue of whether Primus breached its duty of care and whether that breach was a substantial factor in producing the decedent’s injuries.

Not only does this decision reinforce the need for food safety inspections to be carried out with the utmost care, it also means that inspectors and food companies should examine their contracts with each other to make sure that the proper contractual safeguards and indemnification provisions are included.

For more information on food and drug litigation, contact Doug Behr at or +1 202.434.4213; or Art Garrett at or + 1 202.434.4248; or Bob Niemann at or +1 415.948.2827.

[1] Lloyd v. Frontera Produce, Ltd, et al., 2014 U.S. Dist. LEXIS 135582 (D. Md. Sept. 24, 2014), [enhanced version available to subscribers].


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