By Nuno F. Soares

Two food safety-related news releases recently caught my attention. These were incidents in which good faith was questioned.

Have you seen the shocking and disgusting video, initially posted on June 28, 2019, floating around social media? In it, a young girl grabs a half gallon of Blue Bell ice cream out of the freezer in a Walmart, opens it, licks it, and puts it back in the freezer!

This case could be seen as a young consumer acting in bad faith with no regard toward public health or food safety, or simple bad behavior, or an irrational, irresponsible, and thoughtless attempt to get a video to “go viral.” Regardless, it reinforces the importance for the food industry to consider monitoring and mitigating inappropriate use of or tampering with food products (intentionally or not) at the retail level.

The challenge for food safety professionals is to constantly examine products and processes (including packaging) in search of flaws or gaps that could lead to the inappropriate use of products and/or intentional tampering (as in pharmaceuticals, for example). We should not simply trust and expect that all people will act in good faith or treat, handle, and consume food products in a way we believe is obvious.

Update: Girl licks ice cream, faces charges in juvenile court

Although second-degree felony tampering with a consumer product can carry a penalty of up to 20 years in prison, this particular suspect may not face that harsh of a penalty, because she is now headed to juvenile court.

If you’re wondering why there wasn’t a seal on the ice cream, Blue Bell released a statement saying they freeze their half-gallon cartons upside-down, creating a natural seal that makes it obvious when the carton has been tampered with. And Blue Bell said it removed all half-gallons of the Tin Roof flavor from store shelves out of “an abundance of caution.”

Good faith and bad faith

Bad faith is also involved in a recent decision (from June 2019) by the Supreme Court of the U.S. state of Delaware in reversing a previous decision in a suit against Blue Bell’s directors (coincidentally, the ice cream manufacturer from the licking incident mentioned above).

In a nutshell, after a listeria outbreak in early 2015 (wherein three people died), Blue Bell was compelled to recall all its products. This caused a liquidity crisis, production operations shut down, and a massive number of employees were laid off (more than a third of the company’s workforce).

Another consequence was a lawsuit against Blue Bell’s board of directors filed by a stakeholder claiming “breaches of the defendants’ fiduciary duties.”

This decision has several interesting aspects. The court explained that is required that “a board make a good faith effort to put in place a reasonable system of monitoring and reporting the corporation’s central compliance risks.” In Blue Bell’s case, “food safety was essential and mission critical.”

In part, the court ruling was decisive in that the plaintiff, based on the books and records from management meetings, could “plead an inference that the board has undertaken no efforts to make certain it is informed of a compliance issue intrinsically critical to the company’s business operation.”

Included in the court document is the Delaware court’s opinion: “The fact that Blue Bell nominally complied with FDA regulations does not imply that the board implemented a system to monitor food safety at the board level (…) compliance with these requirements shows only that management was following, in a nominal way, certain standard requirements of state and federal law. It does not rationally suggest that the board implemented a reporting system to monitor food safety (…).”

Both these cases are lessons for food safety professionals, food industry managers, and directors. The first lesson for food safety professionals is that we should not make ANY food safety decisions based on the premises of good-faith use of products by consumers. The second lesson for food safety manager and directors is that we should know
that the absence of good-faith efforts to monitor food safety and to ensure the success of a regular reporting system can backfire as a bad-faith breach of their duties.

About the author

Nuno Soares is a food engineer who has been working in food industry since 1999. Nuno has worked in roles including quality and production manager. With the goal of reaching further with his ideas for food safety and support other professionals in their daily work, Nuno recently embraced researching and publishing activities. For his PhD, he researched how to improve frozen fish shelf-life and protection by developing a new glazing solution. After publishing his first book Food safety in the Seafood Industry (Wiley), he recently self-published the e-book: ISO 22000:2018 Explained in 25 Diagrams.

You can contact Nuno on LinkedIn or at www.nunofsoares.com.