Beware: Your inadequate product recall is likely to provoke a lawsuit

While most product recalls in all industries are preventable through careful planning and strict procedures, they still occur and happen now more than ever before. And even after following correct protocols and regulatory guidance, you may still find yourself in the middle of a recall.

But it’s not only a defective product that will put your company at risk. More important is the way you manage the recall that follows. Recent events demonstrate consumer advocates, regulators, and lawyers are paying closer attention than ever to the way companies handle their recalls. And there are fewer things worse for a company’s livelihood and reputation than a recall perceived to be mismanaged.

Take for example the lawsuit between a mother of a child who died in a shoulder-sling infant carrier and Infantino, the product manufacturer. According to the mother, Infantino chose to ignore the hundreds of negative reviews posted by consumers on retailers’ websites. She claimed Infantino did not issue a recall of the product until a fourth death was reported, a year after her son died. Eventually, the mother agreed to an $8 million settlement that was shared among a group of claimants.

In more serious cases, federal or state criminal charges often follow civil lawsuits. Blue Bell Creameries pleaded guilty this year to charges by the U.S. Justice Department that it sold contaminated ice cream products linked to a 2015 listeriosis outbreak involved in the deaths of three people. In addition to the $17.5 million fine for distributing adulterated products, Blue Bell agreed to pay $2.1 million for civil False Claims Act allegations, which resolved allegations that the company failed to abide by contractually required recall procedures.

At the core of most recall lawsuits are the actions, or inaction that occurred during the recall process itself: steps that were missed in tracking, delays in regulatory response, or unsent public notifications. In many cases, simple recall planning and process reviews could have prevented a catastrophe.

Our advice to you? Don’t wait for a recall to occur. It’s safe to assume you will eventually be implicated in a recall, so craft a plan to implement it properly. Carefully prepare for the worst-case scenario and consider all possible factors and implications. Walk through the procedures to ensure you’ve planned out each step and have everything you need to take action when and if the time comes. And remember, communication is your best friend during a recall. Make sure your plan includes adequate procedures that allow you to reach your customers and the public quickly and appropriately.

By taking these precautions, food and consumer product companies can remain confident that if a recall does occur, they will be able to manage it well enough to satisfy the regulators, protect consumers, and avoid costly – and possibly devastating – lawsuits.

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