Cadbury salmonella defence is weak, claims lawyer

By Elaine Watson

- Last updated on GMT

Related tags Cadbury Risk

Cadbury salmonella defence is weak, claims lawyer
The case against Cadbury for breaching food safety laws looks “very compelling”, a product liability expert at legal firm Reed Smith has...

The case against Cadbury for breaching food safety laws looks “very compelling”, a product liability expert at legal firm Reed Smith has argued.

Speaking after Cadbury admitted that the salmonella contamination it first discovered back in January would cost it £20M this financial year, Darren Smith, a partner in Reed Smith's product liability practice group, said: “There appears to be a strong case that Cadbury has breached the EU General Food Law (EC 178/2002).”

He added: “Ultimately, it will come down to expert evidence if it goes to court. Technically, if Cadbury could get every major chocolate manufacturer in Europe to say that they would have done the same thing in the same situation, that could help its cause, but that doesn't seem very likely.”

A defence based on the fact that Cadbury 'acted in good faith' when it failed to inform the authorities about the incident in January because it believed there was no health risk, was not a very good one, claimed Smith.

“Article 19 of the regulation does place the onus on the manufacturer to assess the risk, but ignorance is no defence. If it was, any manufacturer faced with such a legal challenge could argue that it had 'acted in good faith' because it didn't believe it had a problem.”

The Advisory Committee on the Microbiological Safety of Food has already made it very clear that Cadbury's approach to risk assessment was outmoded, said Smith: “The courts will have to decide what science was readily available to a company the size of Cadbury at the time of the contamination. The legal view would probably be that it is incumbent on a company of this size to keep abreast of the latest developments in terms of risk assessment.”

Article 7 of the regulation also stipulates that if there is any 'scientific uncertainty' surrounding a case, the precautionary principle should apply, in which case a recall should have been issued anyway, he said. Unless every single one of the experts Cadbury consulted at the time was convinced that there was absolutely no food safety risk, this also suggests that Cadbury was potentially in breach of the law, he added.

If a civil case were brought by people claiming that Cadbury's products had made them ill, Cadbury would probably want to settle out of court to avoid further bad publicity, he predicted. However, if children were making the claims, they could not be settled without court approval, said Smith.

His comments came as Cadbury said it expected the salmonella incident to cost it at least £20M this financial year. Half of this related to the cost of the recall and the rest to one-off manufacturing costs to improve risk assessment measures and increased marketing spend.

Overall UK confectionery sales in the four weeks immediately following the recall were down 7% on the same period in the previous year, partly due to hot weather. On the basis that it has lost 110 basis points of market share, Cadbury's sales over the same period were down around 10%, estimated broker Panmure Gordon. “This is actually far lower than some reports, which suggested its sales were down by 25%.”

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