by Damian C. Adams, Michael T. Olexa, and Tracey L. Owens, and Joshua A. Cossey
Producers of unpasteurized “raw” milk face significant legal liability. Pasteurization is “the application of heat to destroy human pathogens in foods.”1 The process can significantly reduce milk’s disease risks; yet the process can also reduce milk’s inherently beneficial qualities, such as available nutrients, active enzymes, helpful bacteria, calcium absorption, and taste.2 Milk is an ideal vector for several dangerous bacteria and viruses, and several serious disease outbreaks have been blamed on raw milk. The U.S. Food and Drug Administration blamed raw milk for 45 such outbreaks from 1998-2005, including severe symptoms and hospitalization.3
Despite the risks to human health, producers continue to market raw milk to the general public even when specifically prohibited.4 Part one of this article, published in the October 2008 issue, addressed the federal and state regulatory schemes for marketing raw milk and provided background information on pasteurization and its impacts on milk. Part two examines the legal ramifications of marketing raw milk to the end consumer. There are four legal theories that an injured person is likely to use to recover for damages from raw milk: 1) negligence and negligence per se; 2) strict products liability for manufacturing, design, and warning defects; 3) breach of express or implied warranty; and 4) misrepresentation.
Bearing in mind the elements of a negligence suit, a dairy farmer or vendor of raw milk is required to use ordinary or reasonable care in production and maintenance, marketing, and selling raw milk, as well as to provide warning or notice of any deleterious condition; milk should be without impurities or contamination.5 Potential errors in the handling and vending of raw milk include the use of contaminated milk, cross-contamination of wholesome and contaminated raw milk, poor personal hygiene by infected milk handlers, inadequate cleaning of equipment, inadequate temperatures for storage, insufficient assessments of a cow’s health, and failure to properly sanitize a facility.6 For example, in Hygeia Dairy Co. v. Gonzalez, 994 S.W.2d 220, 223 (Tex. App. 1999), a Texas appeals court found that producers had a duty to disclose any diseases among the herd prior to the sale of any animal. This duty may extend to herd share schemes, which advocates consider as reducing liability to the farmer because the consumer is drinking milk from the cow owned in part by the consumer.7 The question of whether a duty exists can turn on the foreseeability of harmful consequences, particularly with respect to third parties.8
Plaintiffs in a negligence claim may find it difficult to establish that the raw milk was the proximate cause of their injuries.9 Courts may look to medical testimony to evaluate other potential causes of an illness.10 In Florida, the plaintiff’s burden of proof may be met by a “reasonable certainty” that the milk caused the injuries.11 Commodities like milk are typically collected from numerous producers, graded, and then stored collectively. One contaminated truckload can spoil the whole lot, and it can be difficult to determine which producer is to blame for the contamination.12 Florida courts have recognized market share liability, which allows apportionment of fault according to market share.13 This form of liability has only been applied to negligence cases, not strict liability, warranty, or other actions, which are discussed below.
Raw milk producers may have a special duty to warn. 14 When raw milk is sold to consumers for pet or human consumption, a warning or disclaimer often accompanies the product. Once a duty to warn arises, the manufacturer who has provided it may still be liable for harm if the warning is inadequate. A qualitative evaluation may find that the warning did not sufficiently advise of the product’s potential dangers, which is “no better than providing no warning at all.” 15 Mandatory warnings and labels do not shield the producer or vendor from liability in negligence actions. 16
Negligence per se is triggered when the defendant violates a statute or regulation that was designed to prevent the type of harm suffered by the plaintiff. Violation of Florida’s statute governing the handling and/or sale of milk would trigger negligence per se. 17 Once established, the defendant is liable for injuries regardless of how reasonable the defendant’s actions.18
Raw milk marketers are also vulnerable to strict products liability claims for 1) manufacturing defects, 2) design defects, and 3) warning defects.19 Food products are considered to have a manufacturing defect if they contain a “harm-causing ingredient” that “a reasonable consumer would not expect the food product to contain.”20 Florida applies the reasonable expectations test for manufacturing defects.21 For raw milk, the main focus of a manufacturing defect claim would be whether the consumer would reasonably expect the harmful contaminant to be in the product.22 If the ordinary consumer is aware of any naturally occurring, potentially unhealthy characteristics of raw milk, the characteristics do not necessarily make the product defective. For example, alcohol and raw seafood are not considered defective despite their “inherent danger,” because the public is sufficiently aware of their potential harm.23
Unlike products that are well known for containing potentially harmful ingredients, raw milk may be considered wholesome by most consumers. Juries have consistently determined that, except for raw seafood, consumers did not reasonably expect bacterial contamination of foods and that these foods suffered from manufacturing defects.24 Some raw milk producers have even advertised their products as being healthier than pasteurized milk,25 creating even higher expectations.26
A design defect occurs when a product “conforms to its intended design [that] renders the product not reasonably safe.”27 Florida follows both a risk-utility test28 and a reasonableness test for these cases.29 According to the risk-utility test, juries must consider a number of factors to determine the overall social desirability of the product that injured the plaintiff.30 With the reasonableness test,31 juries must examine whether the product “could have reasonably been made safer by a better design” when considering what the manufacturer knew or should have known about alternative designs.32 Producers claim that raw milk has improved vitamin and calcium content, provides for better long-run consumer health, and tastes better than pasteurized milk.33 Such claims weigh in favor of raw milk; however, the slight cost associated with pasteurization and the high risks of injury to vulnerable classes would weigh against raw milk.
Defective warning arises when “the foreseeable risks of harm posed by the product could have been reduced … by the provision of reasonable instructions or warnings … and the omission … renders the product not reasonably safe.”34 Like defective design, courts apply the consumer expectations and risk-utility tests to defective warning claims.35 The presence of state-mandated language is one factor of a warning’s adequacy.36 For example, pet food allowances might provide some protection to producers and vendors, but they may be responsible for foreseeable uses and misuse of their products, even when users violate explicit warning labels.37
Warranties are representations made about the product’s characteristics or performance. The Uniform Commercial Code art. 2, which was adopted at least in part by every state except Louisiana,38 governs the sale of goods and related warranty claims. Florida courts are divided on whether the UCC prohibits common law warranty of merchantability claims.39 An express warranty is created by affirmative statements of facts, promises, and even opinions provided by the vendor during the sales process.40
Vendor and producer claims about the wholesomeness of raw milk may be considered an express warranty. For example, when producers advertise raw milk as “healthier than pasteurized milk,”41 they are vulnerable to liability for breach of an express warranty. 42 Implied warranties are ipso facto warranties; any product that enters into commerce includes an implied warranty of merchantability, meaning that the product “is reasonably fit for the general purpose for which it is manufactured and sold.”43
For example, raw chicken is merchantable because its ordinary purpose is consumption after thorough cooking. In the context of milk, it is merchantable if it meets acceptable safety standards and is fit for human consumption.
The reasonable expectations test determines whether food products are merchantable.44 Implied warranties of merchantability can extend to third parties. A vendor can be held liable for a consumer who is not a purchaser or arguably cannot make an informed, reasonable choice about drinking raw milk.45 Not all raw milk drinkers are well-informed, reasonable risk takers. For example, milk vendors — who have historically targeted their marketing efforts toward children — could arguably have foreseen these consumers being within the anticipated zone of risk.
Deceptive advertising claims (including omissions) are the basis for a misrepresentation claim in tort.46 For example, in Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 965 (Ca. Dist. Ct. App. 1992), Alta-Dena had long advertised its certified raw milk as having health benefits. Evidence at trial confirmed that certified raw milk was less safe that pasteurized milk, contained dangerous bacteria, and was not produced under “the strictest health standards in the industry” as advertised.47 The California court concluded that Alta-Dena’s false and misleading advertisements warranted a compulsory warning label on its certified raw milk products.48
If the injured raw milk drinker establishes the elements of his or her claim, the producer or vendor has several potential defenses to reduce a damage award. These include a statute of repose and plaintiff behavior defenses such as comparative negligence.49 Florida’s statute of repose invalidates most products liability claims after 10 years.50 Some exceptions apply for injuries that are not immediately apparent, such as exposure to asbestos. Recent studies have indicated that the effects of food-borne illnesses may onset years or decades later,51 potentially complicating the analysis.
A pure comparative negligence rule applies in Florida.52 This operates to apportion damages according to each party’s percentage of fault, which can include assumption of risk, misuse, and alteration of the product. The classic example is the consumer with liver disease who consumes raw oysters and becomes ill, or a consumer who eats raw pork and develops trichinosis.53 In the raw milk context, defendants may be able to show that plaintiffs were fully aware of the health risks (even though the ordinary consumer would not have been, and even if warnings were inadequate), yet consumed the product anyway.
Populations of at-risk consumers,54 consolidation of industry and mass distribution of food from few central food processing centers,55 and people’s increased reliance on eating away from home56 contributes to the risk of mass foodborne disease outbreaks.
For the raw milk producer or vendor, raw milk sales are dripping with liability potential from a myriad of legal theories: negligence and negligence per se, strict products liability, breach of warranties, and misrepresentation. While no safety protocol is absolute, many states view pasteurization as a cheap, effective, and proven method of reducing disease risks with arguably negligible negative impact on the quality of milk. As raw milk liability potential now stands, one can only warn caveat emptor et venditor — let both buyer and vendor beware.57
1 International Dairy Foods Association, Pasteurization: Definition and Methods, http://www.idfa.org/facts/milk/pasteur.cfm.
2 Linda Bren, Got Milk? Make Sure It’s Pasteurized, 38(5) FDA Consumer Magazine 29, 29-31 (Sep/Oct 2004) (“Raw milk advocates claim that unprocessed milk is healthier because pasteurization destroys nutrients and enzymes necessary to absorb calcium. It also kills beneficial bacteria and is associated with allergies, arthritis, and other diseases….”).
3 U.S. Food and Drug Administration, FDA and CDC Remind Consumers of the Dangers of Drinking Raw Milk (Mar. 1, 2007), available at www.fda.gov/bbs/topics/NEWS/2007/NEW01576.html. See also CDC, Multistate Outbreak of Salmonella Serotype Typhimurium Infections Associated with Drinking Unpasteurized Milk — Illinois, Indiana, Ohio, and Tennessee, 52 (26) Morbidity & Mortality Weekly Rep’t 613 (July 2003) (In 2002, several Ohio children were hospitalized with salmonella food poisoning after visiting a small dairy.).
4 M.L. Headrick et al., The Epidemiology of Raw Milk-associated Foodborne Disease Outbreaks Reported in the United States, 1973 - 1992, 88(8) Am. J. Public Health 1219, 1219-1221 (Aug 1998). Disease outbreaks from raw milk (86.9 percent) reported by the U.S. Centers for Disease Control [hereinafter CDC] from 1973-1992 were in states where raw milk sales were legal.
5 Fla. Stat. §500.10 (2008); see also Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007).
6 See Jean C. Buzby et al., Product Liability and Microbial Illness, 799 Agricultural Econ. Rep’t 1, 4 (Apr. 2001).
7 Jim R. Schwiesow, Government Storm Troopers and our Milky Ways, available at www.newswithviews.com/Schwiesow/jim9.htm (stating herdshare programs provide liability protection since the animal belongs to the consumer).
9 See, e.g., Richard C. Ausness, Tell Me What You Eat, and I Will Tell You Whom to Sue: Big Problems Ahead for “Big Food”?, 39 Ga. L. Rev. 839, 869-74 (2005).
10 English v. Louisiana Creamery, Inc., 181 So. 2d 800 (La. Ct. App. 1st Cir. 1965).
11 Gant v. Lucy Ho’s Bamboo Garden, Inc., 460 So. 2d 499 (Fla. 1st D.C.A. 1984).
12 David A. Fischer, Products Liability — An Analysis of Market Share Liability, 34 Vand. L. Rev. 1623, 1625 (1981) (discussing problems of proving liability in generic drug production).
13 See Conley v. Boyle Drug Co., 570 So. 2d 275 (Fla. 1990) (The Florida Supreme Court allowed a narrow version of market share liability for drugs that caused birth defects.).
14 See Powers v. Thobani, 903 So. 2d 275 (Fla. 4th D.C.A. 2005).
15 West-American Law of Products Liability 6, §33:1, n. 133 (3d, Clark Boardman Callaghan 2007).
16 Restatement (Third) of Torts: Product Liability §4 cmt. e (2006).
17 See Fla. Stat. Ann. §502.091 (2006); Fla. Admin. Code. Ann. R. 5D-1.001 (2006).
18 96 A.L.R.3d 22; 53 A.L.R.3d 239.
19 Restatement (Third) of Torts: Products Liability, §§8, 19 (2006). A successful strict products liability claim must prove 1) the product was defective when it left the producer’s control; 2) the product was unreasonably dangerous at that time; and 3) the defect was the proximate cause of the harm to the consumer. See 63 Am. Jur. 2d Products Liability §550; see also Restatement (Third) of Torts: Product Liability §7 cmt. b, n. 2.
20 Restatement, §7, cmt. A. See also Cousineau McGuire, National Survey of Food Liability: A Breakdown of Case Law and Statutes on a State-by-State Basis for Claims Relating to Food Liability, www.cousineaulaw.com/forum_series/forum_foodliability.htm. See also Lars Noah, Managing Biotechnology’s Revolution: Has Guarded Enthusiasm Become Benign Neglect?, 11 Va. J.L. & Tech. 4, note 252 (Spring 2006).
21 See Koperwas v. Publix Supermarkets, Inc., 534 So. 2d 872, 873 (Fla. 3d D.C.A. 1988).
22 Restatement (Third) of Torts: Product Liability §7 cmt. b (2006); see also Fla. Stat. Ann. §500.10 (2008).
23 Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512, 531-532 (S.D.N.Y. 2003) (recognizing that expectations about food contents are ever-changing).
24 See, e.g., Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547 (Ill. 1992); Bennett v. Hannelore Enters., No. CV-02-5082 (NGG), 2003 U.S. Dist. LEXIS 26083 (E.D.N.Y. 2003); and Rottman v. Krabloonik, 834 F. Supp. 1269 (D. Colo. 1993).
25 See Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 966 (Ca. Dist. Ct. App. 1992).
26 For a discussion of this with respect to corn, see Drew L. Kershen, Health and Food Safety: The Benefits of Bt-Corn, 61 Food Drug L.J. 197 (2006) note 163.
27 Restatement (Third) of Torts: Product Liability §1 cmt. a (2006); see also Husky Industries, Inc. v. Black, 434 So. 2d 988, 995 n.4 (Fla. 4th D.C.A. 1983).
28 Radiation Technology, Inc. v. Ware Construction Co., 445 So. 2d 329 (Fla. 1983).
29 Force v. Ford Motor Co., 879 So. 2d 103, 110 (Fla. 5th D.C.A. 2004).
30 Id. at 331. (The jury would be instructed to consider “the likelihood and gravity of potential injury against the utility of the product, the availability of other, safer products to meet the same need, the obviousness of the danger, public knowledge and expectation of the danger, the adequacy of instructions and warnings on safe use, and the ability to eliminate or minimize the danger without seriously impairing the product or making it unduly expensive.”). Id.
31 Restatement (Third) of Torts: Products Liability §2 cmt. i (2006). For a discussion of the negligence standard, see, e.g., David G. Owen, ed., Philosophical Foundations of Tort Law 215 (1995).
32 Aaron Arnold, Rethinking Design Defect Law: Should Arizona Adopt the Restatement (Third) of Torts: Products Liability?, 45 Ariz. L. Rev. 173, 184 (Spring 2003).
33 See, e.g., Organic Pastures Dairy Co., Frequently Asked Questions, www.organicpastures.com/faq.html. See also Marcia L. Headrick et al., Profile of Raw Milk Consumers in California, 112 Public Health Reports 418, 419 (Sept. 1997).
34 Restatement (Third) of Torts: Products Liability §2(c); see also Richard W. Wright, The Principles of Product Liability, 26 Rev. Litig. 1067, 1122 (2007).
35 Restatement (Third) of Torts: Products Liability §2(c) cmt. n (2006).
36 Id. at §2 cmt. i.
37 Alan Calnan, A Consumer-use Approach to Products Liability, 33 U. Mem. L. Rev. 755, 756-758 (2003); Larue v. Nat’l Union Elec. Corp., 571 F.2d 51, 53 (1st Cir. 1978).
38 Cornell University Law School, Law by Source: Uniform Laws — Uniform Commercial Code Locator, www.law.cornell.edu/uniform/ucc.html.
39 See West v. Caterpillar Tractor Co., 336 So. 2d 80, 88 (Fla. 1976) (U.C.C. remedies are only exclusive when specifically indicated by statute.); see also Taylor v. American Honda Motor Co., 555 F. Supp. 59, 62 (M.D. Fla. 1982) (U.C.C. is the exclusive remedy for a breach of implied warranty claim).
40 U.C.C. §2-313(2).
41 Alta-Dena, 4 Cal. Rptr. 2d 193 (1st Cal. Dist. Ct. App. 1992).
42 Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 966 (Ca. Dist. Ct. App. 1992).
43 U.C.C. §2-313(1). Also, an implied warranty of fitness for a particular purpose is created by the vendor if 1) The vendor is aware of the buyer’s intended use of the product; and 2) the buyer relies on the vendor’s judgment or skill in selecting a suitable product for that purpose. See U.C.C. §2-314. In the context of milk, a warranty arguably would be created if the buyer told the vendor that she was looking for the safest milk possible because she had an immune deficiency.
44 See generally Jerry J. Phillips, Consumer Expectations, 53 S.C. L. Rev. 1047 (2002).
45 Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995) (duty owed to identifiable parties within the zone of risk); see also Cheeks v. Dorsey, 846 So. 2d 1169 (Fla. 4th D.C.A. 2003).
46 Richard C. Ausness, Tell Me What You Eat, and I Will Tell You Whom to Sue: Big Problems Ahead for “Big Food”?, 39 Ga. L. Rev. 839, 865 (2005).
47 Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th at 964-965 (Ca. Dist. Ct. App. 1992).
48 Id. at 971.
49 David G. Owen, Products Liability: User Misconduct Defenses, 52
S.C. L. Rev. 1, 36-40.
50 Fla. Stat. Ann. §95.031(b) (For products with a useful life less than 10 years, claims must be filed within 12 years of purchase.).
51 Virginia Bioinformatics Institute, Escherichia coli O157:H7, http://pathport.vbi.vt.edu/pathinfo/pathogens/E.coli_O157H7.html (End-stage renal failure can onset years or decades after initial infection by E. coli.).
52 Fla. Stat. Ann. §768.81 (2008).
53 David G. Owen et al., Madden & Owen on Products Liability §15:1, 95 n.21 (3d, West Publishing 2000).
54 William T. Jarvis, National Council Against Health Fraud, Raw Milk Can Be Deadly, www.ncahf.org/articles/o-r/rawmilk.html.
55 S.F. Altekruse, M.L. Cohen, and D.L. Swerdlow, Emerging Foodborne Diseases, 3 Emerging Infectious Diseases 285, 285-293 (July/Sept. 1997), available at www.cdc.gov/Ncidod/eid/vol3no3/cohen.htm.
56Id. (Nearly 80 percent of food-borne outbreaks occurred outside the home in the U.S. in the 1990s.).
Damian C. Adams, J.D., Ph.D., is an assistant professor in the Agricultural Economics Department at Oklahoma State University, Stillwater. Michael T. Olexa is professor and director of the Agricultural Law Center at the University of Florida. Tracey L. Owens is staff attorney in the 10th Judicial Circuit Court, Bartow. Joshua A. Cossey is an attorney with the Law Offices of R.W. Bauer, P.A.
This article is a modified version of the authors’ article, Déjà Moo: Is the Return to Public Sale of Raw Milk Udder Nonsense?, 13(3) Drake J. Agr. L., and is published with permission.
This column is submitted on behalf of the General Practice, Solo and Small Firm Section, Ana M. Veliz, chair, and Craig Ferrante, editor.