Legal Memorandum: Duty to Warn Consumers

Issue: Under federal or any state law, whether the manufacturer of a food product has a duty to warn consumers, by way of labeling or otherwise, of the existence of whole insects, insect fragments, rodent hairs or rodent feces in its product where such ‘defects’ are normal, cannot be avoided, and are not harmful to the consumer’s health.

Case law in this area is limited, and no case was found which directly confronts the issue of whether a duty to warn exists under these circumstances. A number of cases discuss the reasonable expectations of the consumer in eating food products and reference, as well, when and whether there may be strict liability on the part of the manufacturer or producer of the product. In that regard, see: Kneibel v. RRM Enters., 506 N.W.2d 664 (Minn. Ct. App.1993); Allen v. Delchamps, Inc., 624 So. 2d 1065 (Ala. 1993); Mexicali Rose v. Superior Court, 1 Cal. 4th 617, 822 P.2d 1292, 4 Cal. Rptr. 2d 145 (1992); Goodman v. Wenco Foods, Inc., 333 N.C. 1, 423 S.E.2d 444 (1992); Phillips v. Town of West Springfield, 405 Mass. 411, 540 N.E.2d 1331 (1989); Title v. Pontchartrain Hotel, 449 So. 2d 677 (La. Ct. App. 1984); Paxon v. Archer, 185 S.E.2d 182 (Ga. 1954).  Some of these cases have cautionary histories.  For example, Mexicali Rose has been distinguished by the court in Langiulli v. Bumble Bee Seafood, Inc., 159 Misc. 2d 450, 604 N.Y.S.2d 1020 (N.Y. Sup. Ct. 1993) and Title has been abrogated by the case of Porteous v. St. Ann’s Cafe & Deli, 713 So. 2d 454 (La.1998).

There are a few cases that discuss the issue of whether a manufacturer or seller of certain meat products (most notably pork sausage) is charged with a duty to warn or advise a consumer of […]