Most jurisdictions apply strict liability principles to certain participants throughout the food distribution chain. This means that if a food product is found to be defective, a supplier may be liable regardless of whether it was negligent. Food adulteration can provide a basis for establishing that a product is defective. Moreover, once the U.S. Food and Drug Administration (FDA), U.S. Department of Agriculture (USDA), or CDC has identified a link between a product and an outbreak, it is often difficult, as a practical matter, to convince a jury otherwise. It may not be enough to deny that the product caused the injury; the defendant may need to provide an alternative cause of the person's illness, which is often impossible. That is not the law, but it is frequently the reality of these cases.

Once the connection is made, the strategy often shifts to mitigating damages and attempting to resolve the cases. While these cases usually settle, recent increases in jury verdicts have driven higher settlement values in foodborne illness cases and attracted greater interest from plaintiffs' lawyers willing to take such cases. These cases also pose a particular risk because potential jurors seem to react more viscerally to foodborne illness claims than to many other types of claims. That may be because the risk feels both familiar and largely beyond an individual's control: Foodborne illness can happen to anyone, regardless of the precautions they take. 

Say What You Do, Do What You Say

Undoubtedly, no one in the food industry wants to cause foodborne illness among their customers. That reality, combined with the risks associated with litigation, means companies should do everything reasonably possible to avoid a foodborne illness outbreak. The best way to do that is to have a robust food safety plan, including documentation of the plan and the company's efforts to implement and follow it. In my experience, many outbreaks involve systemic breakdowns across multiple aspects of a food safety plan. 

Do not make the mistake of assuming your company is immune from these concerns because of the specific characteristics of its products. Foodborne illnesses and outbreaks have been associated with numerous products that were previously thought to pose little risk. The number of ways a contaminant or pathogen can enter the manufacturing process or supply chain is numerous. 

Failing to have a qualified food safety professional on staff or to consult with one—and failing to have an appropriate food safety plan in place—can be especially damaging if the company later faces litigation. Food safety is a maturing and evolving science, and the necessary interventions are often sophisticated. Consultation with a qualified professional is strongly advised.

Just as important, once a company has a food safety plan in place, it must follow it. Make sure the plan accurately describes the company's processes and food safety interventions, and then make sure employees follow it. 

In litigation, that written plan becomes a roadmap for the opposing counsel. Deviations from the plan create opportunities for a skilled attorney to make testifying witnesses very uncomfortable—and provide ready-made evidence to argue that "the company didn't even follow its own plan." That does not mean a company should avoid having a written plan; for many food businesses, maintaining one is a legal requirement.

Insurance, Evidence Preservation, and Legal Preparedness

A company should make sure it has adequate insurance to mitigate its risk further. Experienced counsel can advise on the types and amounts of insurance that may be appropriate. If the company becomes embroiled in a foodborne illness case, that attorney can also help ensure that the insurer retains knowledgeable defense counsel as early as possible. 

Over the past decade, evidence preservation has become an increasingly significant focus in litigation. Some plaintiffs' lawyers use the discovery process tactically, seeking adverse inferences or sanctions based on alleged failures to preserve or produce evidence. It is important that the lawyer defending a foodborne illness claim understands the unique issues these cases present. 

Foodborne illness cases may also present issues that do not typically arise in ordinary civil litigation. For example, although criminal prosecutions are relatively uncommon, violations involving the distribution of adulterated food can result in criminal penalties under certain circumstances.

Questions concerning privilege and work-product protection require particular care as well. Materials developed during a foodborne illness outbreak investigation may be discoverable, even when litigation is anticipated. Whether attorney-client privilege or work-product protection applies can depend on the circumstances under which the materials were created and how they are subsequently used or disclosed. Inexperienced counsel may not recognize this distinction. 

The bottom line is that businesses need to take foodborne illness litigation seriously. A jury is likely to be sympathetic to a person claiming to have been harmed and unforgiving of the company it believes caused the harm. Companies must evaluate their risks, develop and follow a plan to mitigate those risks, maintain adequate insurance coverage, and consult with experienced attorneys if made aware of an outbreak or claim. Ultimately, the survival of both the company and its brand may depend on how well it prepares and responds. 

Reference

1. U.S. Food and Drug Administration (FDA). "Investigation of Multistate Outbreak of Cyclospora Illnesses: Iceberg Lettuce (July 2026)." Current as of October 2, 2026. https://www.fda.gov/food/outbreaks-foodborne-illness/investigation-multistate-outbreak-cyclospora-illnesses-iceberg-lettuce-july-2026