Food companies and retailers should be aware of new traceability rules contained in EU Regulation 178/2002 - born from the recent BSE and dioxin crises in Europe - for food which lay down the general principles and requirements of European food law, warns O'Rourke.
From the 1 January 2005, these traceability rules will apply throughout the European Union and traceability of food and food ingredients must now take place at all stages of production, processing and distribution in the food chain - from 'farm to fork'.
In a recent paper O'Rourke writes that there are no derogations from these traceability obligations for certain individual sectors such as SMEs or small local producers.
Under the new EU rules, food businesses must be able to identify from whom they obtained a food ingredient/food product and to whom they supplied a food ingredient/food product - referred to in simple terms as 'one step forward and one step back'.
But here's the sting. According to O'Rourke, the new traceability rules have the potential to herald more litigation against food retailers and companies, especially in Ireland which is known to be a very litigious country in relation to food safety/product liability claims.
There seems to be a misunderstanding within the Irish agri-food industry that any traceability documents will be treated as 'business secrets' by Irish courts and not be available to consumer plaintiffs in court proceedings, he writes.
O'Rourke points out that while it is true that under the EU official controls directive it is not possible for a consumer plaintiff to seek discovery of the details of an inspection report on a food company, retailer, hotel or restaurant. The same is not the case with traceability documentation, which will be available to a consumer plaintiff once they satisfy the three requirements for seeking discovery of documents in the Irish courts - relevance, necessity and fairness.
With the extension of the Product Liability Directive to cover the entire food chain 'from farm to fork', there are certain to be a plethora of claims against food retailers and companies under this new legislation, claims O'Rourke.
"There is no facility to utilise a 'due diligence' defence under the directive and the onus is upon the injured party to prove the damage and defect caused by the food product," he explains.
With very advanced traceability systems now becoming mandatory a consumer plaintiff has the added advantage of obtaining sufficient evidence to instigate a strong case against a food company or retailer, who may try to transfer the liability further back along the food chain ultimately to the farmer, warns the food lawyer.
Informed consumers are demanding traceability more and more. With the advent of the new mandatory food traceability obligations in January 2005, every food company and retailer should ensure that they will be able to fulfil these new food safety obligations.
Driving home the reality, O'Rourke writes:"It is important to remember that an adequate food traceability system reduces risk exposure by enabling food companies/retailers to identify, isolate and correct a food safety problem quickly and effectively, so that consumer health is protected and the economic fallout from any potential litigation can be minimised."