Our industry has debated source identification or traceability with a lot of energy and emotion. Some producers favor mandatory disclosure, while some favor voluntary measures. Others favor no disclosure at all. However, traceability—the ability to track a product from consumption back through the channels of production—is increasing every year.

In fact, the requirements already in place are more comprehensive than many realize. Producers are already required to maintain records that show the origin of the following classes of cattle when entering interstate commerce and not going directly to slaughter:

  • All sexually intact cattle and bison 18 months of age or over
  • All female dairy cattle of any age and all dairy males born after March 11, 2013
  • Cattle and bison of any age used for rodeo or recreational events
  • Cattle and bison of any age used for shows or exhibitions

As both a producer and a lawyer, one question I hear most frequently is: “Aren’t I at risk if I have to identify my ranch as the original producer? I don’t want to get sued!”

While there are several reasons to be for or against traceability and source identification in the beef industry, in my opinion, the threat of legal liability is an overstated reason. First, most, if not all of us, would agree the health of the public that consumes our product is more important than the potential cost or embarrassment of being identified as the source of a problem.

Second, it is important to under-stand that legal liability for damages arises from three sources—contract, statute and tort.

Contractual liability arises from the breach of an agreement to do something in accordance with specific terms. A cause of action for breach of contract has three requirements: an agreement, a breach of the agreement and resulting damages. An example would be if a producer were to enter into an agreement with a retailer to supply a branded, all-natural product and failed to follow the requirements of that contract.

Statutory liability arises from the violation of a law or regulation implemented by government—in other words, breaking the law. For example, observing withdrawal periods for the use of antibiotics. Already, the Food and Drug Administration has jurisdiction to impose penalties ranging from requiring education courses to taking legal action.

Civil or tort liability is what most producers are thinking of when they ask me about the risk of being sued. This kind of liability arises when someone either negligently does something or negligently omits to do something they have an obligation to do. An example would be telling a buyer the source of the cattle was a single ranch when you knew the statement to be untrue or did nothing to confirm it was true.

It might be true anyone can bring a law-suit if they can pay the filing fee, but unless you agree to do something and don’t, negligently do (or fail to do) something you were obligated to do, or violate the law, in my opinion your risk of liability is low.

 

Robert (Bob) Thompson is a partner with international law firm Bryan Cave. He focuses on complex commercial business litigation in both state and federal courts throughout the U.S. He is co-leader of the Food and Agribusi ness Industry Group and is a member of the firm’s executive committee. You can contact him at: rmthompson@bryancave.com or (816) 374-3249
 
Note: This story appears in the January 2017 issue of Drovers.