Presentation by Eversheds' partner Richard Matthews at a recent food and drink seminar in Leeds September 14th 2012. Presentation is entitled Product recall - Getting it right.

1. Product recall
‘’Get-it right’
Richard Matthews, Partner
14 September 2012

2. Legislative framework: Criminal
• Food Safety Act 1990
– Section 7 (rendering food injurious to health)
– Section 14 (food not of nature / substance /
quality demanded)
• General Food Law Regulations EC/178/2002
• Due diligence defence

3. General Food Law Regulations
EC/178/2002
• Article 14 (placing unsafe food on market)
• Food deemed unsafe if:
– injurious to health
– unfit for human consumption
• Article 16 (labelling / advertising shall not
mislead)
• Article 18 (one up: one down traceability)
• Article 19 (withdrawal / recall of unsafe food)
– notify authorities
– co-operate with authorities

4. Civil claims
• Part I, Consumer Protection Act 1987
• Breach of contract
– raw material specification
– express terms (“compliance with all relevant
UK/EU food legislation”)
– implied terms under Sale of Goods Act 1979
• compliance with description
• reasonably fit for purpose
• satisfactory quality
• Negligence

5. Food related incidents are on the increase
across Europe
4000
notifications (RASFF)
EU - total number of
3800
3600
3400
3200
3000
2800
2600
2400
2200
2000
2004 2005 2006 2007 2008 2009 2010 2011

6. ....and in the UK also
Total number of FSA incidents
1800
1700
Recorded incidents
1600
1500
1400
(UK)
1300
1200
1100
1000
900
800
2006 2007 2008 2009 2010 2011

7. What are the reasons?
Breakdown of FSA incidents by category, 2007 – 2011
Category 2007 2008 2009 2010 2011
(%) (%) (%) (%) (%)
Environmental contamination 17.2 14.3 17.4 22.7 20.8
(fires/sewage/heavy metal etc)
Natural chemical contamination 16.4 17.7 12.4 15.1 16.6
(aflatoxins/algal toxins etc)
Microbiological contamination 12.4 14.3 18.0 18.0 16.4
(Salmonella/Ecoli/Listeria etc)
On-farm (heavy metal poisoning/ 12.2 10.7 11.9 8.1 7.8
botulism etc)
Physical contamination 9.4 8.5 4.6 7.7 5.4
(metal/pests/glass etc)
Labelling / documentation 6.3 9.7 6.4 6.3 7.0
Allergens (milk/gluten/nuts etc) 6.6 6.5 7.1 5.2 6.7

8. Key points of interest
• 1,714 food incidents were investigated by the
FSA last year, compared to 1,505 in 2010
• Microbiological contamination (e.g. Salmonella or
Ecoli) is up
• There has been a big increase in FSA
investigations sparked by whistleblowers

9. Why the increase?
• Tighter legislation/regulation
• FSA and other regulatory bodies are getting
tougher and conducting more testing
• Reporting of incidents is increasing (i.e. whistle-
blowing etc)
But some instances can still be avoided e.g.
mislabelling

10. Product risk management: minimise
the risk of a recall
• Assess risks at each stage of product’s life
• Supplier audits
• Audit compliance with regulations
• Batch marking / traceability
• Beware changes in supplier / specification
“An Ounce of Prevention is worth a Pound of Cure”
Benjamin Franklin

11. Product recall planning: prepare for
the worst
• Up-to-date list of relevant contacts
• Train customer service staff
• Establish a major incident team
• PR strategy and spokesperson
• Establish systems for monitoring the recall

12. Recall practicalities
• Small crisis team
• Compliance with insurance terms
• Contemporaneous record keeping
• Trained spokesperson
• Q&As
• Clear language in notifications
• Liaison with FSA
• Capture costs at time
• Don’t create damaging documents

13. The impact of Social Media: Case
studies
• Plum Organics (US) – Organic baby food
– Mixing error at factory leading to Botulism scare
– Voluntary recall utilising Facebook and Twitter
Outcome:
– Company maintained reputation
– Concerned customers were able to engage with the
company quickly and directly
– On Facebook many of the comments were positive.
Customers were grateful for easily accessible
information and transparency

14. Case studies continued
Maple Leaf Foods (Canada) – Meat products
• Listeria outbreak – 21 deaths – recall of 243 ready to eat
meat products
• External company blog launched to engage with
consumers and discuss Listeria and other food safety
concerns
• New website www.mapleleafaction.com to inform the
public about steps to improve food safety
Outcome:
• Company survived and restored its damaged reputation
and regained market share

15. Case studies continued
Britvic – Fruit Shoot recall (UK)
• Fruit Shoot brand valued at £96m
• Recall due to concerns with lid, which was a potential
choking hazard
Outcome:
• No social media utilised despite having a company Twitter
account
• Estimated impact of recall - £25 million

16. Case studies continued
Dole foods (US)
• Salad product with risk of Salmonella
• Company had Facebook and Twitter accounts but failed to
utilise them effectively
• Posting information regarding competitions/promotions
instead of recall information
• Outcome:
• Concerned consumers’ post on company’s Facebook page
– lack of response, leading to frustration and a lack of
information damaging the brand

17. Social Media: Lessons learned
• Social media should be used in conjunction with more
traditional methods (i.e. press releases/advertisements)
• Social media (Twitter/Facebook etc) can be a quick,
effective and inexpensive way of getting your message out
• Using social media can counteract the problems faced
when recall messages get misinterpreted and incorrect
information is disseminated
• Can be highly damaging to brand if don’t react
• A threat but potential opportunity

18. Summary: Key points
• Recalls are increasing in the UK and Europe
• Put measures in place to minimise the risk of a
recall
• Prepare and rehearse recall plan
• Social media can play a key role in a successful
recall

19. Any Questions?