FDA Reports 12% of U.S. Spice Imports Contaminated With Insect Parts And Rodent Hairs…What’s In Your Salad?

New York Times reporter Gardiner Harris reported on October 30, 2013 that an FDA study found that about 12 percent of spices brought to the United States are contaminated with insect parts, whole insects, rodent hairs and other things, based upon an analysis of spice imports.

According to FDA officials, it is unclear what share of the nearly 1.2 million annual salmonella illnesses in the United States result from consuming contaminated spices.  Less  than 2,000 people had their illnesses definitively tied to contaminated spices from 1973 to 2010, and most people eat spices in small quantities.   But because people often fail to remember eating spices when asked what foods might have sickened them, FDA officials speculated that problems related to spices may be under-reported.  The Scientific literature has associated foodborne illness outbreaks from microbial contaminants in spices.

According to the FDA, spice imports from Mexico and India have been found to have the highest rate of contamination. Nearly one-quarter of the spices, oils and food colorings used in the United States comes from India. However, reports have associated salmonella outbreaks with spices associated with other spice exporters as well, including Italy. The spices under scrutiny include widely sold, everyday spices, including oregano and basil, among many others. 

"The American Spice Trade Association, which is dedicated to ensuring the supply of clean, safe spice to the American public, had not yet seen the FDA report and therefore could not comment.  However, spice manufacturers have argued in the past that food manufacturers often treat imported spices before marketing them. Therefore,  findings of contamination levels in FDA’s import screening program do not necessarily mean that spices sold to consumers are dangerous.

The adverse publicity facing the spice industry is endemic of much greater litigation risks to the food industry as a whole.  “The New Lawsuit Ecosystem” (10/13), a report issued by the U.S. Chamber Institute for Legal Reform, identifies food class action litigation as an emerging liability threat to American business.

The Executive Summary states that the report describes the "lawsuit ‘ecosystem’  for the areas of litigation abuse of most concern to the business community….Defending these lawsuits drains millions of dollars from businesses that could be spent spurring business expansion and creating new jobs with few countervailing benefits.”  Although the emphasis of the discussion concerns class action litigation alleging trivial violations of federal regulations, there is no question that food poisoning claims have riveted media and public attention as well.  Some plaintiff lawyers have devoted their entire practice to the prosecution of food poisoning claims.  

Food poisoning litigation has also become big business for companies that host legal conferences.  An upcoming conference in San Francisco, sponsored by the American Conference Institute, is titled "Food Borne Illness Litigation: Advanced strategies for Defending and Managing High Profile Food Contamination Claims".  An advertisement for the conference leads with the following:

Each year roughly 1 in 6 Americans (or 48 million people) get sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases.”

– 2011 Estimates from the Center for Disease Control and Prevention

There is no question – as the food supply becomes more global, the chance of contamination increases. The latest food outbreaks come from non-traditional pathogens and foods that came from overseas – the number of affected people is still unknown. In addition, the increasing reliance on international suppliers has led to a host of supply chain food safety issues that are increasingly difficult to monitor and combat.

The defense bar is also mobilizing considerable resources and effort to assist companies targeted by plaintiff lawyers. One prominent defense firm is urging its clients to be prepared by assembling a litigation response team to develop a "thorough traceback program through which food items can be traced back to their origins".  This firm cautions that defending these cases is not for amateurs, but requires the "coordination of expedited investigation and documentation, evidence location and preservation, supplier agreements and indemnification commitments, selection of and consultation with (often) a constellation of experts…."  

Any litigation arising from Mr. Harris’ story in the New York Times about contaminated imported spices should be recognized for what it really is…..the tip of an enormous iceberg that has been heading toward the food industry for some time. 


Requiring Objectivity in Evaluating Private Nuisance

Our nation’s courts are mindful that private nuisance is only actionable if an interference with use and enjoyment of land is both “substantial and unreasonable.” Courts are cognizant that lots of people, who sometimes speak too loudly, smell badly or otherwise do not show proper regard for their neighbors, are thrown together in close proximity, particularly in urban settings,  To permit these petty annoyances to be actionable as private nuisance would result in flooding our court system with trivial and nonsensical disputes. 

It was with this consideration no doubt in mind that the Court of Special Appeals of Maryland, in David S. Schuman v. Greenbelt Homes, No. 2020 (September Term, 2011),  affirmed on June 27, 2013, a Maryland trial court decision, which had concluded that a townhouse resident could not recover in private nuisance for the annoyance caused by secondhand smoke from a neighbor smoking on his back porch. 

You have to love an appeals court decision, which captured the flavor of the matter by opening with the lyrics of an old hit song:

"A Mills Brothers hit from the 1930’s asks the musical question:

Where do they go,
The smoke rings I blow each night?
Oh, what do they do,
Those circles of blue and white?"

After a six day trial, the Maryland trial court determined that the neighbor, who enjoyed four to six cigarettes on his back porch every evening was not a nuisance. Although the smoking created an odor, the claimant stressed potential adverse health impacts caused by secondhand smoke. Therefore, it was surprising that the plaintiff failed to produce any medical records showing an actual injury resulting from the smoke. Yet lack of medical proof was not the determinative finding in the court’s ruling. 

As is often the case with these disputes between long time neighbors (who lived in adjoining townhomes in a housing cooperative in Greenbelt, Maryland), friction first arose fifteen years prior to the trial. At that time, the plaintiff claimed that the neighbor’s cigarette smoke was seeping into his home through cracks in the walls. In response to this complaint, the coop attempted to mitigate plaintiff’s exposure to the cigarette smoke by sealing the walls. 

The sealed walls apparently did the trick until 2008 when the plaintiff renovated his home. In addition to the seepage issue reappearing, the neighbor now complained that he was bothered by secondhand smoke from his neighbors smoking on their back patio.  As a result, smoke came into his home when the windows were open.

In rejecting plaintiff’s nuisance claim, the appeals court held “If this Court were to hold that any amount of secondhand smoke entering from one cooperative housing member’s home to another’s constituted a nuisance, we would be one step away from banning smoking in all private homes,” Judge Robert A. Zarnoch said, writing for a four-judge panel. The appeals court also affirmed that the small amount of smoke involved did not amount to a nuisance in fact under Maryland law.

In so holding, the court determined that its ruling was consistent with the approach taken by other courts. In particular, it cited in a New York Appellate Division case, Ewen v. Maccherone, 927 N.Y.2d 274, which determined that “the law of private nuisance would be stretched beyond its breaking point if we were to allow a means of recovering damages when a neighbor merely smokes inside his or her own apartment in a multiple dwelling building.” 

As framed by the New York State Court of Appeals in Copart Indus. v. Con. Edison Co., 41 N.Y.2d 564, 394 N.Y.S.2d 169 (1977), one of the leading private nuisance cases in New York, a plaintiff seeking to establish a private nuisance must demonstrate the invasion of the interest in the private use and enjoyment of land is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangers conditions or activities. 

In essence, the appeals court advised the plaintiff to get over it. “In this case, if Schuman does not want to be harmed by or to smell smoke, the only inconveniences he has are that he cannot sit on his porch to up to an hour and a half each evening and has to shut his windows at that time.” The court also recognized that merely because a claimant has a particular sensitivity to the smell of smoke that sensitivity cannot be the basis for a nuisance finding. 

Rather, courts examine nuisance claims brought by “sensitive” individuals, such as Schuman, by applying an objective standard, i.e. whether the smoke would cause physical discomfort and annoyance in persons of ordinary sensibilities. It is noteworthy that plaintiff’s expert, James L. Repace, determined that the nicotine levels in the air at the courthouse – where smoking was prohibited – was similar to air readings taken at plaintiff’s house.

As the New York Court of Appeals wrote over forty years ago, “Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other. If one lives in the city he must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life.” Nussbaum v. Lacopo, 7 N.Y.3d 311, 315, 265 N.E.762, 317 N.Y.S.2d 347 (1970).

During the pendency of the appeal, the case garnered considerable attention.  The Tobacco Control Legal Consortium of the Public Health Law Center filed an amicus brief on behalf of plaintiff arguing that exposure to secondhand smoke poses a severe and immediate health risk, not a mere annoyance.   Despite a strong appeal to the science in the amici brief, the Maryland appeals court did not take the bait. 

Private nuisance cases can be troublesome to defend if the plaintiff is one of many who finds the defendant’s conduct a nuisance. If several unit owners at the Greenbelt Coop found defendant’s smoking problematic, the case would have been that much more difficult to defend. 

In the absence of third-party corroboration of the nuisance, defense counsel in these cases should stress the absence of objective evidence of the nuisance, such as in Schuman, where the plaintiff’s complaints were not associated with any medical complaints.  The objective evidence Schuman did possess–air testing–was determined to be unpersuasive after it was determined that  nicotine levels found in plaintiff’s home were no higher than background levels. 

Where the defendant has objective data–such as VOCs readings from a Draeger cannister in petroleum odor nuisance case–and the plaintiff does not have an expert who has performed testing to document plaintiff’s claims, it may be possible in some jurisdictions to seek dismissal as a matter of law.  

In what may be some small measure of consolation to the losing plaintiff, since this litigation commenced, the Coop has initiated a procedure pursuant to which coop owners along a row of units can now voluntarily revise their Mutual Ownership Contracts to indicate that smoking in these units is not permitted. 

Lead Pigments in Paint and Public Nuisance Law

Lost in the learned treatises written in the wake of the Rhode Island Supreme Court’s decision in State of Rhode Island v. Lead Industries Association, Inc.  (July 1, 2008),  which properly held that manufacturers of lead pigment are not liable under a nuisance theory for the harm caused by the use of lead paint, is discussion of the significant loss of market capitalization and shareholder value to Sherwin Williams and other manufacturer defendants who have been defending these nuisance claims for the past several years.  Apparently, there is no mechanism in Rhode Island for a defendant to file an interlocutory appeal to challenge a trial court’s denial of a defendant’s motion to dismiss a complaint as a matter of law.  Had an interlocutory appeal been available to the lead pigment manufacturers, there is no doubt that the Rhode Island Supreme Court would have ended years ago the State Attorney General’s misguided crusade to have the defendants pay billions of dollars to remediate lead contamination in an estimated 240,000 houses  and apartments, 12,969 seasonal housing units, 419 child care centers and 339 elementary schools.  Notions of basic fairness suggest that a defendant facing a potential liability of this magnitude should be able to obtain appellate review of the plaintiff’s right to proceed before having to incur the cost and uncertainty of a court trial.  A defendant with less resources than the lead pigment manufacturers might have been forced into a premature settlement with the State or even sought bankruptcy protection prior to waiting out the lengthy appeals process.