( – promoted by Colorado Pols)
UPDATE #2: The House Judiciary Committee voted 10-1 to indefinitely postpone consideration of HB 11-1190 last night (2/22/11).
UPDATE: When I explained products liability law, I forgot to mention a particularly salient part of the law. If you have ever gone to a used car dealership, you will immediately know what I am talking about – the disclaimer. A seller can avoid any responsibility whatsoever for the goods – including food – he sells by conspicuously posting a disclaimer of the implied warrantly of merchantablity or the warranty of fitness for a particular purpose. In the case of food retailers – like Vitamin Cottage – this would mean posting signs at the door, by the cash registers and at strategic places around the store where food is sold, something like this:
Sold as is . . . .
All the food and products sold in this store are sold as is with all faults. We do not warrant that the food we sell you is fit for human consumption. Specifically, we do not warrant that the food is safe to eat or that it will not make you sick or kill you.
If we told you that we have determined that the food we sell you is “safe” or of the “highest quality available,” you cannot rely on those representations if you get sick. If we told you that you could trust the products that we sell in this store – don’t believe us because this was just marketing and “puffing.” We didn’t mean it. We were lying.
“Who would shop at such a store?” you ask. No one. That is why HB 11-1190 is not only a license to poison, it is a licence to lie.
In an earlier post, I brought to your attention that Rep. Jerry Sonnenberg (R-Sterling) and Sen. Cheri Jahn (D-Lakewood) are sponsoring HB 11-1190 – a bill that would limit – no, eliminate – retailer’s liability for selling the public tainted food. In that post I reported that according to Sen. Jahn this was being promoted by Vitamin Cottage and I would explain why. It is a story of greed and willful ignorance. But, more than anything else it is about what corporations learn and take away from human tragedies that they cause. This story is important, not simply because it explains Vitamin Cottage’s motivations for pushing this bill, but because it discloses exactly what the authors want the bill to do. There will be no unintended consequences if you understand this history.
General products liability law says that the seller of a product – like food – warrants that the product is “fit for the ordinary purposes for which such goods are used.” In the case of food that means that it won’t make you sick. This is called the implied warranty of merchantablity which makes everyone in the chain of production and sale liable to a customer who is injured by product found to be unsafe. Where the seller or manufacturer go futher to market their product as “healthy, safe and of the highest quality,” the seller has made the consumer an express warranty of “fitness for a specific purpose.” If, in the case of food, the product makes you sick or kills you, the seller is liable to you for your injuries and your medical expenses. The customer does not have to prove intent or even negligence – only that it was the product – used as it was intended – that caused the injury.
In Colorado, our legislature – in its infinite wisdom – has carved out an exemption to this rule for Colorado retailers – not just food retailers – all retailers. Colorado retailers are exempt from liability if the consumer can sue someone higher up the chain like the manufacturer. However, if the consumer can’t get at the manufacturer because it is in China or filed bankruptcy, the law removes the exemption and makes the Colorado retailer liable for the consumer’s injuries.
HB 11-1190 would carve out an additonal exemption for “food retailers.” Unless the retailer tainted the food itself, it would not be liable to a consumer to whom it sold tainted food except where the retailer “knew” that the food was tainted. It would protect retailers who bury their heads in the sand and practice willful ignorance. Under this standard, a retailer – say Vitamin Cottage – could tell its customers that “We only sell products that we have determined are safe and are of the highest quality available. You can completely trust the products that you buy from Natural Grocers by Vitamin Cottage.” * But, after you to trust them and the food you buy from Vitamin Cottage makes you sick or kills you, they can say, “Oops, didn’t know. I don’t read newspapers – wouldn’t believe them if I did. You really believed us? Go away. Don’t bother me with your silly lawsuits and your medical bills. Not our problem.” Because the retailer bought the food from China or a company that went bankrupt, you’re screwed.
Perhaps the best nickname for this bill should be the “Vitamin Cottage Poison Peanut Butter Bill.” You see, that’s where it comes from. Apparently, Vitamin Cottage got sued because it’s “organic” peanut supplier was Peanut Corporation of America. Vitamin Cottage used salmonella tainted peanuts from PCA to make their in-store ground peanut butter. Despite the fact that the contaminated peanut story was initially reported by the MSM in November of 2008 and PCA was identified as as the source of the contamination in late December of 2008, Vitamin Cottage did not recall the peanuts and peanut butter or inform its customers that it used PCA peanuts in its products until January 30, 2009. (Hey, Kroger pulled all of its PCA related products in early January and told its customers not to eat them.) Even then, Vitamin Cottage professed that it’s peanut butter was safe. Not until mid-February of 2009 did Vitamin Cottage finally acknowledge that it had used tainted peanuts to make and sell its peanut butter. On February 13, 2009, the PCA filed bankruptcy so they couldn’t be sued by all of the people they had killed. Vitamin Cottage got sued – in part, because they said that “they had determined” that their peanut butter was “safe” and “of the highest quality.” We could trust the products that we buy from them.
What was Vitamin Cottage’s response – “We didn’t know.” More specifically, here is what Heather Isley, Executive Vice-President, told Congress on March 19, 2009. Basically, she relied upon what PCA told her in the months between November 2008 and February 2009. And what did that corporate miscreant PCA tell her? ”No problem.” This is the same PCA which public records show had had problems with contamination of it products before in 2001 and 2007. In fact, goverment inspectors had found that PCA had on these prior occasions intentionally shipped salmonella contaminated peanuts and peanut products.* Had the executives at Vitamin Cottage exercised even a modicum of reasonable care or due diligence, they would have known they could not trust a thing that PCA said. Keep in mind, Vitamin Cottage promises its customers that it has “determined” that its products are “safe and of the highest quality available.” If the Vitamin Cottage had lived up to their pledge, I hope that they would never have used PCA as a supplier in the first place.
If HB 11-1190 had been the law in 2009, the people who “trusted” Vitamin Cottage and got sick because of eating its peanut butter would have been SOL. The people in whom we entrust our fagile food suppy must understand that they will be held to a higher standard of care that those who merely sell us cars or shoes or computers. Yet, Vitamin Cottage is asking our legislators to lower the standard.
In closing, I want to say that I don’t profess to be “fair & balanced” – at least not in the same way that the MSM acts. Both, sides don’t have an equally valid positions – that is false equivalency. However, that doesn’t mean that I haven’t carefully reviewed Vitamin Cottage’s position – I have. I just don’t buy it. So don’t expect me to spend a lot of time and space giving Vitamin Cottage’s position. However, I will give you a link where you can read what they have to say for yourselves. Testimony of Heather C. Isely, Executive Vice President, Vitamin Cottage Natural Food Markets, Inc. (“Natural Grocers”), Lakewood, Colorado before the Subcommittee on Oversight and Investigations U.S. House Committee on Energy and Commerce.
I admit that I was hard on Vitamin Cottage – some of you may think unfairly so. I began my research with a relatively high opinion of Vitamin Cottage. However, while researching this issue, I came across the Vitamin Cottage corporate manifesto: “What We Won’t Sell and Why.” Here is what Vitamin Cottage wants its customers to believe this manifesto means:
What Natural Grocers by Vitamin Cottage Does Sell: We only sell products that we have determined are safe and are of the highest quality available. You can completely trust the products that you buy from Natural Grocers by Vitamin Cottage.
Yet, their behavior during the contaminated peanut crisis, their response to their customers’ law suits, and their support of HB 11-1190 belies a much different message. Buyer Beware! We can sell you poisoned food and it’s just your problem.