Faculty Scholarship

Document Type

Article

Publication Date

Summer 2004

Abstract

This Article examines the question of whether an unsuspecting consumer who dies from an allergic or toxic reaction to an undisclosed biotech ingredient in food can recover damages through the tort system. The surprising answer is that recovery is very unlikely. This Article outlines why this is the case, then evaluates the merits of several potential solutions to this problem including the possible creation of a common law 'duty to identify' biotech ingredients in food.

This Article is arranged as follows. First, a brief primer on the nature of biotech foods is provided. For the reader unfamiliar with the regulatory system governing food products, this Article proceeds to survey the regulatory scheme currently applied by the FDA [Food and Drug Administration] to most food products, including biotech foods. Then, the Article provides a brief primer on food allergies and toxicities. This Article then summarizes current theories of tort liability that courts apply to the vast majority of products, except traditional foods. A detailed description of the very distinct theories of tort liability that apply to traditional food products follows.

Next, the Article exposes the unintended result of the FDA's decision to regulate biotech food as if it were traditional food, when this regulatory system, as applied to biotech food, is scrutinized in conjunction with current theories of tort liability for harm caused by the ingestion of food products. Juxtaposing one against the other reveals that the entire biotech food industry may be insulated from liability for harm from potential new allergens or toxins contained in its products.

In the final section, this Article suggests several possible solutions to this inadvertent tort immunity problem, evaluating the merits of each and concluding that the most plausible solution may lie in the court system. This Article proposes that courts avoid the application of food product liability theories to evaluate harm from the ingestion of biotech food and instead apply the utilitarian risk/utility theory of liability that governs all other ordinary products in the majority of jurisdictions. Applying risk/benefit balancing erases the barriers created by the current system and allows an innocent, injured consumer to reach the jury on the merits of her claim. A jury may then balance the benefits of a biotech product against the likely occurrence and severity of injury it may cause, factoring in whether a reasonable alternative design exists, such as identifying the biotech ingredient on the product label. In this fashion, juries can act in a reasoned fashion to weed out those biotech food products which are not beneficial to society pursuant to the same enterprise liability, fairness, and moral principles that govern any ordinary new product. This utilitarian approach could lead to the creation of a new common law 'duty to identify' biotech ingredients in food which would inform consumer choice, facilitate risk avoidance, and result in the compensation of innocent consumers. Thus, the tort system could be used to indirectly accomplish a reform that consumers ovewhelmingly desire but that legislatures, to date, have refused to adopt. [excerpt]

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