by Jay Girvin, Esq., Girvin & Ferlazzo P.C., Albany, NY
What liability issues are associated with the direct sale of farm products, and what can farmers do to limit their exposure to claims?
Direct farm marketing – that is, selling food and farm products directly to consumers without using an intermediary such as a processor, distributor, or retailer – is a common and well-established practice. It can take many forms, including roadside markets and farm stands, farmers’ markets, or “pick-your-own” enterprises. Some products, such as fruits and vegetables, may be offered for sale without processing or with minimal preparation. Other products may undergo some degree of processing before being offered for sale in a “value added” form, such as jams, pies, or apple cider. Whatever the form, direct farm marketing allows farmers to establish a direct connection with consumers while generating supplemental farm income. By eliminating the middleman, direct farm marketing also allows consumers to enjoy food that is typically fresher and better tasting, at either the same or a lower cost.
As with any activity involving direct contact with the general public, the direct marketing and sale of farm-produced food to consumers may expose the farmer to potential legal claims. A consumer may claim to have suffered an injury or illness as a result of consuming processed or non-processed food purchased directly from the farmer, whether as a result of the presence of a foreign object, contamination by a food-borne illness, or other cause. While such claims may also arise in non-direct farm marketing situations, the number of intermediaries between the farmer and the consumer often makes it difficult, if not impossible, for the consumer to establish that the defective or contaminated condition existed at the time the original product left the custody of the farmer.
If, for example, a consumer claims to have bitten into a foreign object contained in a bag of pre-prepared, ready-to-eat salad purchased at a grocery store, linking that foreign object back to the original producer of the head of lettuce may be practically impossible. The original head of lettuce was likely shipped by the farmer to a processor who, after cutting and washing the lettuce, may have combined it with other salad ingredients obtained from different farm sources. The combined ingredients are then packaged (possibly by another vendor) and shipped to various distribution facilities, where the ready-to-eat salad is ultimately placed on the grocery store shelf. The number of intermediaries not only makes it difficult to determine when in the chain of production the foreign object was originally introduced into the product, but also increases the likelihood that any foreign object originally present in the head of lettuce will be detected at some stage of the production and removed. Given these difficulties, an injured consumer may choose to limit his or her claim to only the seller or distributor of the final product.
The buffer of intermediaries, however, is not available where the farmer sells the head of lettuce directly to the consumer through direct farm marketing. If the consumer is injured as a result of a foreign object or other defective condition in the product, he or she will have little difficulty identifying the potentially legally responsible party. New York law allows a consumer who is injured or becomes ill as a result of consuming allegedly contaminated or otherwise unwholesome food to bring claims under a variety of legal theories, including negligence, strict products liability, and breach of implied warranty of fitness. While the facts and circumstances necessary to establish each of these types of claims vary, all of these claims provide a potential basis for liability in direct farm marketing situations.
Farmers engaged in direct farm marketing can and should take several steps to minimize their potential liability. First, farmers should ensure that they implement and follow good agricultural and food safety practices to reduce the likelihood of contaminating the food they are producing. These practices may, for example, include using only potable, tested water in cleaning and preparing fruits and vegetables; ensuring that fruits and vegetables are carefully washed to remove field debris and organic matter; and separating livestock and other animals from areas in which food products are processed, stored, or sold. Signs should also be conspicuously posted to advise consumers of any additional steps they should take before consuming the purchased food items, such as thoroughly rinsing all fruits and vegetables. Any farmer who offers farm-processed food for direct sale (for example, jams) should also ensure that the processed food is produced in compliance with all regulations and requirements of the New York State Department of Health and/or Department of Agriculture and Markets. Such compliance is not only legally required, but also serves to demonstrate the farmer’s commitment to standard food safety practices.
Even the most prudent farming operations, however, cannot guarantee that all food sold will be free of defect or contamination in all cases. For this reason, farmers engaged in direct farm marketing should review their existing farm liability insurance policies. Some liability policies may not cover direct farm marketing that occurs off the farm, or may not cover product liability claims at all. The best preventative step a farmer can take is to ensure that sufficient insurance coverage for product liability claims is in place.