Is my food safe AIJA presentation Silva Neto

Orlando Celso da Silva Neto

Silva Neto Advogados

The Federal University of Santa Catarina

Palazzo di Turatti, Milan, May 15th, 2015

Is my food safe? how to warrant the compliance of safety rules in the food supply chain. A Brazilian consumer’s perspective.

lack of rules is definitely not an issue when food safety is concerned

excess of rules might be the problem.

Two broad sets: sanitary/biological and general consumer protection rules

Rules of the first kind: ‘tracking’, origin controls, biosafety, genetically modified organisms, etc.

Brazil is a member of most relevant international treaties and organizations

Food safety is initially understood as a problem of access to food

Late 80’s-early 90’s – The concept of food safety incorporated the notion of right to safe food products, rather than just access to food … As a result:

national policy for food and nutrition safety, which was established by Decree 7.272;

national policy for ecological agriculture and organic production, regulated by Decree 7794

national system for new seeds approval and handling (Federal Law 10.711/2003)

national policy for organical agriculture (Federal Law 10.831/2003) approval, harvesting, transport and commercialization of genetically

modified organisms (Federal Law 11.105/2005)

Approval of new seeds, harvesting, production and commerce of GMO are regulated by the CTN-Bio – National technical biossafety commission

Regulatory conflict: environment x new GMO seeds

Other conflicts : State legislation x Federal law.

Food safety, genetically

modified organisms, the

environment and right to

information

Consumer Protection and Defense Code (Law 8.078/90 –CPDC)

No specific food safety rules; general consumer protection rules applicable to food consumption

Consumer protection in the

CPDC and food safety

Consumer safety policy in the CPDC

Acknowledgment of consumer’s vulnerability;

Governmental action to effectively protect the consumer, including guarantee of quality for products and services and standardization;

Incentives for suppliers to develop adequate quality control methods and standards;

Adoption of more favorable civil procedure rules, including, under certain circumstances, a shift on burden of proof rules (ex: services contracted or cancelled through call centers)

Strict liability

Manufacturer or servicer is responsible for any damages arising out of regular use and consumption of a product or a service

Defect is presumed, if damage is a consequence of regular use or consumption.

General business liability

Compensable damages: Material and moral damages (not punitive; but with pedagogical purposes)

“New” compensable damages: loss of possibilities (chance);

lawyer contractual fees;

wasted time;

Special appeal. Consumer Protection Law. Claim for moral damages. Soda bottle with a strange body inside. Non ingestion. Consumer exposed to a concrete risk of damage to his health and safety. Moral damages asserted. Manufacturer’s breach to its duty not to endanger consumer. Offense to the fundamental right to adequate food.

Legal provision analyzed: 4º, 8º, 12 e 18, CPDC e 2º, Law 11.346/2006.

(...) 2. The appeal refers to moral damages when a consumer

purchases a soda bottle with an alien body inside, without ingestion (the liquid or the alien body).

3. The acquisition of a food product with an alien body inside exposes the consumer to a concrete risk to its health and safety, and even if its content is not ingested, right to compensation for moral damages arises, given the fact that the fundamental right to proper food, landmark of the principle of human dignity, was offended.

4.Characterization of a defective product (art. 12, CPDC), which exposes the consumer to a concrete risk to its health and safety, meaning a clear breach of legal duties imposed to the supplier as per art. 8º CPDC.

5. Special appeal denied, Appeals Court decision withheld.

Moral damages: risk or exposition to risks, even

without actual consumption.

REsp 1424304/SP, Rel. Ministra NANCY ANDRIGHI, TERCEIRA TURMA, j. 11/03/2014, DJe 19/05/2014.

It was alleged that the alien body was ‘similar to a human fetus’, but later established that it was a decomposed very small lizard (a

gecko). The defendant was the Coca Cola company. 1st degree judge condemned the defendant to pay compensation of R$ 2,49 (give or take 1 US dólar – the acquisition price of the soda bottle).

Appeals court accepted the claim for moral damages, on the value of approximately 7000 US dollars. The bottle was never opened.

(i) product/service was not defective;

(ii) damage was caused by consumer’s own fault; and/or

(iii) a third party, not connected in any manner to manufacturer/provider is responsible for the damage.

Manufacturer’s defenses

Special appeal. Claim for indemnization for moral damages. Chocolate candy – existence of larvae – product consumed after the expiry date – exclusion of causation – product guarantee – safety and quality – Consumer Protection and Defense Code – Term – Biological and chemical studies – expiration date set by the manufacturer – Appeal denied..

REsp 1252307/PR

Consumer’s own fault as cause for

exclusion of liability

Retail liability is usually found in situations when damage was caused by the consumption of meals prepared on restaurants.

In cases where food poisoning is being discussed, the consumer’s primary burden of proof is establishing a clear cause-effect relationship.

Retailer’s liability.

Consumer Law. Special appeal. Claim for moral and material compensation. Product placed in the market after its expiry date had occurred. “Traditional arrozina” (arrozina tradicional) consumed by babies only 3 months old, which has caused acute gastroenteritis. Safety vice on the supply. Manufacturer’s liability. Retailer can not be considered an unconnected third party. Liability not averted due to third party’s exclusive fault.

- Food produce destined specifically for babies’s consumption exposed on retailers’ shelf after products’ expiry date, thus risking babies health only 3 months old and causing them acute gastroentheritis, causes damages to be compensated as per art. 12 CPDC.

- Retailer and manufacturer are both inserted in production and supply chain, and therefore can not be considered unconnected third parties for purposes of averting liability.

- The eventual fault of the retailer does not exclude manufacturer’s liability.

Special appeal by the manufacturer denied.

REsp 980.860/SP, Rel. Ministra NANCY ANDRIGHI, TERCEIRA TURMA, julgado em 23/04/2009, DJe 02/06/2009.

Manufacturer liability in case of retailer’s breach of a legal obligation: Is the ‘Arrozina Tradicional’ case a new standard?

The ‘diet’ spring water case.

Consumer’s right to be fully informed, even when legislation or regulatory rules set a lower standard – The GMO and Gluten case.

Labeling, packaging and

food safety. What constitutes

the right to adequate

information?

Concluding remarks

Construction of new standards in food safety or simply a case of growing legal uncertainty and transaction costs?

Have we gone too far concerning manufacturer’s liability?

Thank You!

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