Public Safety Liability for Mobile Food Retailers and Quick Serve Restaurants

TASA ID: 1926

"Food Trucks" have become popular retailers in the food service world, along with food carts and mobile food kiosks.  But whether they are selling cupcakes, gourmet hot dogs, crepes, or tacos, they can present public safety liability issues that need to be addressed.

Mobile Food Retailing Definition

Mobile food retailing encompasses stationary or mobile food kiosks found in malls, airports, and other public venues. Mobile food retailing provided by "street vendors" has existed for decades. Originally, food street vending consisted of small food carts peddled by individual vendors along downtown streets, outside public baseball stadiums, or on public beaches to attract vacationers uninterested in leaving their comfortable lounge chairs. But the industry evolved from street vendors to food kiosks in the 1980's. This trend was primarily driven by Quick Serve Restaurants (QSR) seeking expanded distribution points to drive sales numbers.  Prior to the 2000's, local food trucks were known as "roach coaches" and other demeaning names that symbolized the public perception that the food quality was barely acceptable and the food safety questionable.  Ironically, the public accepted the risk and the chance they would fall ill.

Then, mobile vending evolved rapidly, with smartphone apps and email announcing food truck itineraries.  In the 2010's, the food truck phenomenon has embraced the notice of celebrity chefs, as well as recent culinary school graduates, eager to find that competitive edge or start a new business. Local competitions among food truck vendors are held in major urban centers like New York, Chicago, and Los Angeles.  Finally, establishing mobile vending as more than a passing fad, the Oprah Winfrey Show during its final season ran a segment with a celebrity food chef that featured some of California's most popular food trucks.

What Is the Risk and Should We Be Concerned?

Yes!  First of all, most mobile food retailers have not received any food science, food microbiology, or food safety training - ever!  Now, I must admit that I am a free market spokesperson and generally against government regulation, but there must be a baseline food safety standard that becomes a public "food safety shield." I also believe that local municipal health departments are not equipped to develop these standards - or invest the time and resources to monitor these standards - particularly in light of municipal budget deficits across our nation.

The public health risk continues to grow as mobile food retailing venues grow and some savvy owners begin to franchise their food truck brand.  And the risk is that a large sector of the public is susceptible to food poisoning from lax food safety standards or no standards at all. The risk to the mobile retail vendors is that they subject themselves to litigation risk and being forced out of business. The hidden public health risk is that the general public assumes food purchased from these mobile units is safe - and the public is never well served with unfounded assumptions.

QSR Restaurant Reference Model

For attorneys trying a mobile food retailing liability case, reviewing the QSR reference model will illustrate what safety precautions should have been in place. The QSR restaurant model is an excellent reference point for establishing standards for mobile food retailers. Since the QSR restaurant industry is approximately 50 years old (like KFC, McDonald's, and Church's Chicken), it has developed highly competent research and development departments consisting of food scientists, food processing experts, food microbiologists, and their own food plant supplier auditing teams. In addition, they have developed detailed food preparation and store operations execution procedures.  Many large QSR restaurant chains have also forged relationships with the FDA and USDA to resolve technical issues quickly when they arise. And many of these restaurant chains require their suppliers to have similar expertise within their R&D, Quality Assurance, and Food Safety teams. In other words, the traditional restaurant chains have developed a public "food safety shield" to protect their precious consumers, their brand image, and their shareholder profits.

What Is the "Food Safety Shield"?  What Should the "Food Safety Shield" Be?

A "food safety shield" represents policies, procedures, and a corporate culture of food safety that starts with the CEO and filters down to every store manager and supplier.  I propose the following components of a food safety shield that should be applied to mobile food retailers:

1.       Corporate Food Safety Culture

As previously mentioned, a corporate food safety culture must begin at the top of the management/ownership chain and include all employees, restaurant distribution companies, and food suppliers.  A modern day example of a corporate food safety culture that permeates an entire company is evident at Jack-in-the-Box, resulting from the company's food safety debacle a number of years ago.  In other words, they established a food safety shield culture throughout their company and supply chain base to guarantee that contamination and illness would not occur again.

But many QSR and fast, casual dining restaurants have not made food safety a priority, and private equity chain purchases have decreased food safety awareness.  Many food chain private equity owners fail to understand the food safety technical requirements that should be in place internally and through their suppliers. Their number one concern is meeting financial profit and sales numbers. To me, this appears to be a bad business risk, with a potential public food safety problem waiting to happen.

For attorneys leading a food liability litigation against a food company, I recommend beginning your case by exposing the lack of a corporate culture of food safety.

2.       Trained Food Safety Expertise

Every large or small restaurant chain, stand-alone restaurant, or mobile food retailing organization needs a food safety expert on its staff, or should retain an experienced food safety consultant to be the internal and external lead for day-to-day food safety monitoring and policy and procedure execution. And the cost of a food safety expert needs to be considered as a "cost of doing business" - period!  I estimate that most restaurant chains with fewer than 500 stores do not have a trained food safety expert on staff or on a retainer. Why is this risk to public health, brand equity, and company longevity worth this kind of risk?

I advise litigating attorneys to ask for the name, training, expertise, and policies associated with a restaurant management team. And then I suggest examining the consistency with which a company executed safe food handling practices to determine whether they were taking proactive steps on a consistent basis to avoid food safety risks. Most foodservice executive teams hire culinary expertise and meet monthly during pre-established times to review new product ideas - not to check up on their food safety program.  I speak about this from experience, as I have worked as a vice president for six restaurant chains reaching up to $2 billion in global sales.

3.       Store Procedures

A third food safety shield component is store procedures. Typical store procedures are written to define the product as it arrives to the store and after it has been prepared for sale. They also detail exact receiving and storage handling procedures, food heating and cooling procedures and temperatures, quality standards, packaging and labeling standards, etc. In other words, store procedures represent a well thought-out program for insuring the food is safe for the public to eat on a moment-to-moment basis. Well-documented procedures are invaluable to store owners and operators.

4.       Supplier and Distributor Audit Programs

Supplier and distributor audit programs represent a fourth public food safety shield. Every restaurant chain or food mobile retailing company needs to have a well-documented food safety and quality audit program to create an unbroken food safety shield across its entire supply chain.  A restaurant chain may or may not be accountable for a food safety problem at the supplier or distributor level, but why take the risk?

I know of one chain that held product out of its supply chain, at considerable financial cost, when it discovered that a supplier encountered a food safety problem in a food product manufactured on the same production line, but for a different customer.

It is also important to understand the nature of the food quality auditing programs throughout our country and internationally. In the United States, there is no standardized food safety program. Food safety auditing is a "cottage industry" that has no government oversight of which I am aware.  Therefore, an auditing company could consist of one person or many people within a national organization like the American Institute of Baking (AIB).

And most restaurant chains require their own audits, rather than accept the audits of competing chains on food products made on the very same production lines - another waste of money. On the other hand, the international community has sought to minimize this variation by developing common standards under the umbrella of the Global Food Safety Initiative (GFSI). The GFSI has standardized and adapted four to five quality programs from which an international supplier can select. This has become a more globalized standard that has sought to build public confidence. Two program examples are the Dutch HAACP and British Retail Consortium.

5.       Supplier Product and Processing Specifications

Supplier product and processing specifications represent a fifth food safety shield. Product specifications usually include a detailed description of the product "as received" at stores, and "as finished" before it is placed in the serving counter or packaged to-go. It also includes pre-established physical and microbiological specifications that the supplier manages during the product's production on a daily basis. Another aspect of product specifications involves packaging and labeling specifications so that the food product meets all government regulatory requirements for labeling, packaging, storage, and distribution. Food packaging labels must be reviewed on a regular basis to insure that they comply with FDA or USDA label and nutritional regulatory compliance changes, or changes in the product at the manufacturing level

6.       Federal, State, and Local Regulations

Federal, state, and local municipality regulations represent a sixth food safety shield for the consumer public. These specifications represent the credibility of trusted government organizations to insure the food is safe for public consumption

7.       In-Store Field Training Programs

And finally, in-store field training programs are designed to insure compliance with regulations for food preparation, cooking, and handling procedures. A second justification for regular training is to accommodate the high employee turnover rate in the restaurant industry. A training gap could become a serious problem in a food litigation if a new employee was never formally trained.

Mobile Food Retailing and Food Safety Shields

The seven levels of the food safety shield listed above are common to the restaurant industry but are currently uncommon to the mobile food retailing industry. This leaves the public vulnerable to considerable health risks. Attorneys researching food liability cases can benefit from taking the following steps:

1.       Apply Established Models of  Restaurant and Store Food Safety Procedures

During your research, secure a template copy of a Quick Serve Restaurant's detailed product procedures.  Apply each component to the mobile retailer to see if there are any gaps or missing safety steps.  A respected template will illustrate all aspects of food procedures that should be executed.

2.       Investigate the Food Preparation, Cooking, and Holding Platforms

Food trucks represent a wide range of food preparation platforms that the public and government officials may not be aware of. For example, some food trucks may state that the food is prepared on site or assembled on site. The whole idea is to communicate "fresh" food or "fresh prepared food." But in fact, most mobile food retailing vehicles do not have enough space to prepare large quantities of food.  In those situations, the owner prepares the food at an offsite location which may be unregulated. It might even be prepared in a home kitchen - which can further increase product liability.

Conclusion

Mobile food retailers and food trucks face many liability risks for their small businesses.  With public safety at risk, they should not be run as "fly-by-the-seat-of-your-pants" operations.  In order to avoid litigation, it would serve any business owner well to mitigate his or her risks by implementing the seven layers of food safety protection. And it would serve the legal community well to research during case preparation the degree of protection food companies and mobile retailers provide the public.   

 This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.