'Tis the Season for Good Food...And Warnings

During this time of year when we enjoy turkey, turkey ala king, turkey sandwiches, turkey soup, turkey casserole, and crazy delicious holiday food (see above classic example from National Lampoon's "Christmas Vacation"), it is a good time to reflect on...warnings. Yes, that's right, there is even a body of law concerning warnings about food.

You are probably saying to yourself right now, "I've always thought that the turkey packaging should warn about L-Tryptophan and the danger of driving after Christmas lunch." Whether sleepiness after excessive turkey consumption is an open and obvious risk (and therefore constitutes an exception to the duty to warn) is an issue that will be debated for eons among the most sophisticated jurists.

But I digress. The reality is that food warnings law is set forth fairly clearly in comment J. to section 402A of the Restatement (Second) of Torts. As you will recall, South Carolina has incorporated this comment by reference into its strict liability statute as the legislative intent of the chapter. See S.C. Code Ann. § 15-73-30 (1976) (“Comments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.”). Comment j. includes certain exceptions to the duty to warn, and it just so happens that two such exceptions deal with warnings about food.

(1) Common Allergies

The first exception to the duty to warn set forth in comment j. is that “the seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them.” Restatement (Second) of Torts § 402A cmt. j. Although this exception to the duty to warn may be straightforward when the consumer’s conduct relates to avoiding individual food products, it becomes more problematic when these food products are ingredients in other dishes. Comment j. therefore qualifies this exception with additional language.

Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge of the presence of the ingredient and the danger.

For example, the Food Allergen Labeling and Consumer Act (“FALCA”) went into effect in 2006 to require that packaged foods containing milk, eggs, fish, crustacean shellfish, peanuts, tree nuts, wheat and soy must display them prominently in the ingredient list. See 21 U.S.C. § 201 et. seq. According to FALCA, these “Big Eight” food allergens account for 90 percent of all food-allergic reactions, and federal law requires their disclosure on packaged foods. Id. at § 201(2). Comment j. provides some of the rationale for this disclosure: a substantial number of the population is allergic to these ingredients, and the consumer may not know if one of the ingredients is in a food product without the disclosure.

Neither South Carolina state nor federal courts have interpreted this specific aspect of comment j. in the context of a food products failure to warn case. However, in Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996), the court stated in dicta that the “ordinary consumer” standard for determining if a product is unreasonably dangerous does not necessarily apply in the case of products associated with allergic reactions in an appreciable number of consumers.

(2) Products Consumed Over a Long Period of Time

Comment j. also carves out an exception to the duty to warn if the potential danger of a product relates to its use over a long period of time or in excessive quantities: “[A] seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized.” Restatement (Second) of Torts § 402A cmt. j. As examples, the comment cites to alcoholic beverages and foods containing substances such as saturated fats. A seller has no duty to warn about the risks associated with such products from extended or excessive consumption.

Neither South Carolina state nor federal courts have interpreted this exception in comment j. In Aldana v. R.J. Reynolds Tobacco Co., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008), the court cited to this portion of comment j. to support that the warnings for defendant’s cigarette products were not required to make the product itself “safe,” but the court did not otherwise apply it to excessive or extended use of cigarettes. Id. at *2.

From the South Carolina Products Liability Law Blog, here's wishing you and your friends/families a very Merry Christmas and happy holiday season.

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