By Frank Giles
With the start of the new year, many key specialty crops are already in full production with more to follow as spring arrives. Now is a good time to reinforce food-safety protocols on the farm from top to bottom, regardless of operation size.
In 2025, there were only three multi-state foodborne illness outbreaks related to non-sprout produce items. That is less than in recent years. According to Centers for Disease Control data and Food and Drug Administration investigations, 2025 outbreaks were about 10% to 20% of recent yearly averages.
“It is hard to believe that it has been 15 years since January 2011, when the Food Safety Modernization Act (FSMA) was signed into law, and over a decade since November 2015, when we saw the earliest language in the proposed Produce Safety Rule,” says Michelle Danyluk, professor of microbiology and food safety with the University of Florida. “Overall, I’d say awareness is much higher, and practices have significantly improved over that time. Food safety is a journey, not a destination, so we are continuing to see evolution, even in the most mature food-safety programs, as new information comes to light.”
Legal Implications
Produce-related illness outbreaks remain a challenge that require vigilance. For farms implicated in an outbreak, the results can be devastating from a legal and liability standpoint. In most cases, it is required for farms to have food-safety protocols in place. It is also advisable to have a legal plan in place to respond if your farm is implicated in an outbreak and/or recall.
Just like the personal injury law firms that advertise on billboards and airways seeking victims of automobile accidents, slip and falls, etc., there are also law firms that specialize in seeking damages for those who may have gotten sick in a foodborne illness outbreak.
Maile Gradison is a partner with Hogan Lovells, a Washington, DC-based law firm. She has considerable experience with FSMA, having worked with numerous companies and trade associations on all aspects of the law. Gradison says civil litigation against farms has been on the rise when a foodborne illness outbreak occurs associated with fresh produce. Technology has improved to better link the pathogen back to farms. Whole genome sequencing, epidemiology or both play a role.
“Every farm tied to an outbreak should anticipate facing civil litigation from consumers that purchased or consumed the product,” Gradison says. “It’s less common, though not unheard of, for recalls that aren’t tied to outbreaks to trigger such litigation. The distinction lies in the fact that whole genome sequencing data from an outbreak makes proving causation far easier. Either situation also can trigger civil litigation from customers, such as distributors, value-added processors and retailers.”
In the process of educating growers about FSMA and all its requirements, the legal ramifications should not be overlooked. Gradison says those preparations are every bit as important.
“Just like you want to have a food-safety program in place, you need a plan for how you’ll respond if things go wrong,” she says. “This can include having an established relationship with qualified legal counsel that knows this space and identifying subject-matter experts. You also want to pressure-test your team through crisis-preparedness exercises that include personnel at all levels. These exercises should go beyond a simple track-and-trace mock recall. This preparation will help a farm act quickly and responsibly if an issue does arise.”
Responding to an Outbreak
For many growers, the prospect of an outbreak is unthinkable — not just for their business but also for the wellbeing of people who may have gotten sick. Gradison says that’s why having a game plan in place is so important.
“First, make sure you are acting responsibly to protect public health through all of your actions — such as bracketing the recall broadly enough, acting quickly to pull product from the market, initiating your root cause investigation and communicating with the public,” she says. “Second, engage legal counsel immediately to advise on your response, coordinate with regulators, retain experts under legal privilege and manage communications to help you avoid taking actions that could compound the problem. Third, be mindful about the documents you create (including texts) and preserve all records — food-safety logs, distribution documents and communications. Finally, work closely with insurers to ensure coverage is triggered.”
When a recall or outbreak occurs, Gradison says that’s not the time to build a response team. That should have already occurred.
“The most common mistake is failing to get qualified outside help early enough, both from legal and subject-matter experts,” she says. “Working with a team that has experience navigating these types of crises makes a huge difference, especially since most farms fortunately have little direct experience with such events. Farmers should view food safety and legal preparedness as two sides of the same coin. The best time to prepare is before a crisis, not during one.”
