Thomas A. Firey
The current outbreak of cyclosporiasis has Americans cutting back on salads and other raw vegetables. Such outbreaks have become routine in recent years, with leafy greens providing the most common pathway for nasty bugs like E. coli, Salmonella, Listeria, and cyclospora.
Seizing on the latest outbreak, the New York Times recently ran an op-ed by food safety expert Timothy Lytton explaining how such outbreaks occur and what can be done to reduce their occurrence. In Cato’s Regulation magazine last fall, Lytton argued that civil action and private incentives can be used to combat them. In “How Nuisance Law Can Improve Food Safety,” he points out that manure runoff from cattle feedlots and dairy operations sited near produce fields is often the contamination source.
Produce growers and processors already face extensive government regulation concerning water testing and buffer zones, as well as decontamination measures like chlorine washes and irradiation. Meanwhile, the industry actually responsible for much of the contamination, cattle operations, faces weaker oversight and has successfully fought off tighter regulation for years. Vaccinating cattle against E. coli O157 and adding antimicrobial supplements to animal feed would meaningfully cut pathogen shedding, but ranchers have no economic reason to bear that cost since the bacteria don’t harm the animals themselves.
Lytton proposes using nuisance lawsuits to change these incentives. Contaminated manure escaping a feedlot and harming produce farms, food companies, and consumers downstream is about as textbook a nuisance claim as exists in tort law (not to mention an example of negative externality in economics), and neither federal law nor state right-to-farm statutes would block it. The reason these suits almost never get filed isn’t legal weakness; it’s that the parties best positioned to sue (regulators, farmers, food companies, victims) all have reasons to look the other way, from local politics to insurance settlements that erase their incentive to pursue the actual polluter.
Lytton’s is a genuinely novel argument for how tort law, not just administrative regulation, could close a gap that’s persisted through outbreak after outbreak.
