The use of nuisance lawsuits has been raised as a means to drive change around the risks of fresh produce. As such, we feel it is a topic about which it is important to raise awareness.
The statistics: FDA cites the primary source of microbial contamination of fresh produce as indirect or direct contact with animal or human feces; an FDA-supported study found that generic E. coli and STEC prevalence increased in frequency as irrigation canal water flowed past an adjacent livestock and compost operation; and available data shows that generally accepted livestock waste management practices do not adequately or effectively protect water resources from contamination. Such findings coupled with the number of produce recalls due to E. coli contamination are the basis for what has long been an implicit feud between produce growers and animal feed operations.
The issue is escalated by the fact that removing or killing microbial pathogens from fresh produce is extremely difficult, making prevention essential. But how does a produce grower prevent such contamination when it originates at an upstream farm whether through groundwater, canal water, polluted wells, or other such agricultural water sources?
With current approaches failing to solve the issue – neither rigorous pre-harvest requirements nor post-harvest treatments are able to reduce outbreaks; environmental regulatory programs have numerous gaps; and cattle operations lack sufficient economic incentives to address the source contamination – Georgia State University Law Professor Timothy Lytton suggests nuisance claims against cattle feeding operations as a way to improve produce safety. Such claims, he says, would complement existing environmental regulations and incentivize ranchers to vaccinate their herds and employ antimicrobial feed supplements.
This approach not only flips some of the responsibility from the grower to the cattle operation but focuses in on prevention, through either preventing the discharge of contaminated manure from feedlots and dairy farms or eliminating pathogens from manure. Although the National Pollutant Discharge Elimination System (NPDES) program requires compliance with minimum standards for manure management, the gaps in the program enable feedlots to get around many of the provisions. Even proving that an operation is implicated in an outbreak is complex, as the FDA has no authority to enter cattle operations to obtain environmental samples. Prevention could also potentially be attained through the vaccination of the animals and/or feed supplements.
Given the inadequacy of current approaches and the lack of incentive for, and resistance of, the cattle operations to implement preventions, nuisance lawsuits are seen by some as a way to “complement enforcement of environmental regulations and incentivize ranchers, feedlot operators, and dairy farmers to pay for vaccinations and feed additives.”
Although there have been some questions as to the viability of a nuisance lawsuit due to the limitations of states’ Right-to-Farm (RTF) laws, the varying state provisions and precedent-setting court cases have shown that most would not shield cattle operations from nuisance claims of produce farm contamination. Despite that, few have attempted to use a nuisance lawsuit to stop the contamination primarily because there is little incentive or opportunity to do so, and the source is rarely able to be tracked back to the particular field, let alone to a contaminating feedlot.
It is that very identification of the contamination source that is the basis of making nuisance litigation viable and thereby improving food safety, but greater investment in outbreak investigation (along with FDA authority to investigate feedlots) could help to catalyze litigation causing a cascading effect:
- Responding to outbreaks with nuisance litigation would prompt media coverage, which would mobilize survivors and their families, provoke public concern and consumer advocacy, which would pressure Congress to reduce the risk of foodborne illness by increasing appropriations, passing new laws, and pushing relevant agencies to improve their enforcement efforts.
- Nuisance litigation would highlight contaminated manure discharge from cattle operations as a key cause of foodborne illness outbreaks prompting reform advocates to leverage heightened awareness of the problem and lobby for new legislation to regulate cattle operations.
TAG is certainly not advocating for nuisance lawsuits but simply trying to raise awareness about this possibility. Whether or not there will be an increase as a way to reduce produce farm contamination is yet to be seen. But the fact that it is being publicly discussed and advocated by some as a way to improve food safety means that those in this arena need to be aware of the potential and stay informed on any court cases that do arise.
