This month has seen Nestlé, Lactalis and Danone embroiled in a major recall impacting baby formula.
Now, both Nestlé and Lactalis are facing legal action from non-profit, Foodwatch.
Lactalis is voluntarily recalling six batches of Picot brand infant milk across 18 countries.
Danone is recalling Aptamil First Infant Formula, sold between May and July 2026 with a batch code of 31-10-2026 and best before of 31 October 2026.
Nestle is recalling several SMA Infant Formula and Follow-On Formula. Details of affected products here.
Who is liable?
Although the contamination has been traced to a single Chinese supplier of ARA (arachidonic acid) oil, Nestlé, Lactalis and Danone remain liable.
“Under UK and EU general food law, the primary responsibility for food safety lies with the food business operator whose name appears on the product,” said Julie Gowland, partner and head of licensing at law firm, Birketts.
“Liability therefore generally remains with the brand owner, even where contamination originated in an upstream ingredient. That said, robust supplier assurance procedures can help mitigate regulatory criticism. Evidence of active monitoring will also support the position that Nestlé took its obligations seriously. In addition, swift suspension of the implicated supplier (as Nestlé has publicly confirmed) may further demonstrate that the business exercised reasonable care.
“The brand owner may subsequently pursue indemnities or contractual remedies against the supplier, but this does not transfer frontline regulatory responsibility.”
Why is Foodwatch filing a lawsuit?
Foodwatch has criticised Nestlé’s communication efforts, claiming warnings came too late. It is now preparing a lawsuit against Nestlé and Lactalis.
The NGO’S Ingrid Kragl told Food Navigator it has identified “several breaches of European and national regulations” and collated a “great deal of evidence”.
Commenting on the Nestlé case, Birkett’s Gowland said from a legal standpoint it’s not yet possible to determine if it met its obligations regarding speed and transparency of recall notifications.
“Regulators must determine whether the timing of notifications met statutory requirements so as to be sufficiently prompt and transparent,” she noted.
“Under assimilated Regulation 178/2002, businesses must immediately identify safety risks, notify authorities without delay, communicate effectively with consumers and initiate withdrawals or recalls accompanied by effective consumer communication. Nestlé informed Dutch regulators on 9 December 2025 after internal tests in late November, but public recalls in several markets did not begin until early January 2026. Only nine countries were identified in December, compared with more than 60 in January.
“The core legal test is whether Nestlé acted ‘without delay’ once it had evidence of a safety risk. Initial reporting appears compliant, but the pace of consumer‑facing recalls and cross border communication is likely to be scrutinised. Given the facility supplied around 140 markets, regulators may examine whether global communication should have been faster. Key questions remain about speed, consistency and transparency; regulatory findings will ultimately determine whether formal obligations were met.”
Staggered recalls across borders
Whilst Foodwatch contends Nestle’s country-by-country recall announcements left families in the dark, these kinds of staggered notices can be compatible with international expectations.
“Food safety enforcement is carried out at a national level, and each competent authority determines when and how to issue a public recall notice. In that sense, differences in timing are common and not inherently non‑compliant,” explained Gowland.
“Alongside this, businesses have their own obligations, namely that they must notify their respective national authorities without delay once they identify a food safety risk. This duty is proactive and applies irrespective of ensuing national processes.”
Foodwatch’s criticism focuses on whether delays were caused by regulatory decision-making or the company itself. The watchdog has pointed to the time between detection and international recall, and several regulators have also questioned whether the public should have been informed earlier.
“In principle, staggered announcements can reflect legitimate national processes. However, if a business already possesses information indicating that multiple markets are affected and does not communicate that information immediately to all relevant authorities, the resulting pattern of recalls may fall short of international expectations for cross‑border transparency.”
How Nestlé’s liability profile could be impacted
Since the announcement of the recall, health officials in Brazil have confirmed two infants with vomiting and diarrhoea after consuming recalled batches.
Commenting on how emerging sickness could impact Nestlé’s liability profile, Gowland said: “Nestlé’s liability exposure would increase materially across civil, regulatory and reputational jurisdictions. Illnesses linked to infant formula significantly heighten scrutiny given the consumer group is particularly vulnerable.”
Nestlé’s statement that no illnesses were linked to affected products coincided with the aforementioned Brazilian reports, which Gowland said has increased the likelihood of regulators reviewing the timing and adequacy of Nestlé’s internal risk assessments and external communications.
“Civil liability exposure would rise if causation is established. Under the Consumer Protection Act 1987 and the assimilated General Product Safety rules, manufacturers face strict liability for defective products that cause harm. Fault is irrelevant. Any further medically confirmed cases could lead to individual claims, potential group litigation and greater settlement pressure, particularly if regulators find that disclosure delays prolonged consumer exposure. Third party contamination does not diminish Nestlé’s primary responsibility as the food business operator,” she added.
If there are more reports of illness, it will likely lead to reputational risk being intensified.
“Concerns about transparency and timing can amplify legal exposure by damaging trust, driving media attention and increasing pressure for a full contamination timeline, particularly in markets sensitive to infant nutrition safety.”
What happens next...?
So what will happen if regulators deem Nestlé’s disclosure inadequate?
“Findings of delayed disclosure could also result in enforcement action or mandated process improvements,” confirmed Gowland.
“Regulators could issue formal findings of non‑compliance, enforcement notices and requirements to strengthen internal food safety systems. Regulators will be reviewing and scrutinising processes and procedures from late November, being the date the first contamination was identified. Multi‑jurisdictional scrutiny increases exposure because each regulator assesses compliance independently and may publish parallel enforcement outcomes.
“Civil liability would grow. If courts conclude that earlier disclosure would have prevented consumption, as reported in Brazil, claimants could pursue negligence, breach of statutory duty or strict liability under consumer protection rules.
“Regulators would also examine due diligence and supplier oversight. Any delay despite early contamination signals could lead to findings that Nestlé’s supplier controls were inadequate.
“Reputational consequences would further compound legal risk. Foodwatch has criticised the company for intransparency and piecemeal dissemination of information. If regulators determine that disclosure was delayed, this would undermine consumer and stakeholder trust, increase regulatory caution in future inspections and heighten scrutiny.”
Restoring trust
Gowland outlined five steps Nestlé should be taking now to demonstrate due diligence and restore regulatory trust.
- Full cooperation with all regulatory investigations in each affected jurisdiction.
- Demonstrating robust supplier oversight, including documentation of audits, testing protocols and procurement decisions.
- Maintaining complete traceability records showing how affected batches were identified and withdrawn.
- Implementing and evidencing improvements to internal risk escalation and cross border notification processes.
- Providing regulators with updated hazard analyses and preventative controls for future production cycles.
“Taken together, these steps form the legal foundation for restoring confidence in Nestlé’s compliance systems. In a high‑risk category such as infant formula, regulators will expect not only full transparency about what happened, but also clear evidence of structural improvements designed to prevent recurrence.”
Benefits of a clear and full contamination timeline
Meanwhile, Foodwatch has requested a full contamination timeline.
“A clear, documented timeline is central to demonstrating compliance with the duty to act ‘without delay’,” explained Gowland.
“This would allow Nestlé to evidence why particular decisions were taken at each stage. Recent cases underline this point, for example, the Suzanna’s Kitchen recall of Listeria‑contaminated ready‑to‑eat chicken in January 2026 placed significant regulatory focus on the company’s internal chronology of detection, escalation and notification, highlighting how timing is central to legal risk assessment.”
Moreover, by publishing a full timeline, firms can help to rebuilt trust – so long as it demonstrates openness, consistency and accountability.
“A comparable example is the Tri‑Union Seafoods incident, in which quarantined product was inadvertently re‑released into the market. Scrutiny quickly centred on discrepancies in the company’s stated recall sequence, and the resulting uncertainty significantly undermined confidence in its public communications,” Gowland offered.
“This mirrors the debate arising from the disparity between Nestlé’s initial statements and the later confirmation of the Brazilian illness cases – illustrating how even small gaps or ambiguities in the timeline can rapidly erode public trust.
“Providing a coherent timeline can therefore help address public concern and demonstrate that the company is committed to full disclosure. In both the Suzanna’s Kitchen and Tri‑Union examples, it was the clarity and completeness of the timeline, not just the underlying facts, that shaped public and regulatory reactions. Nestlé can therefore materially reduce both legal and reputational exposure by publishing a full, transparent chronology of events.”