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Death Wish Coffee Initiates FDA Recall Over Potential for Toxin in Brew

In a twist of irony, a manufacturer of cold-brew coffee by the name of “Death Wish Coffee” (named such for how strong their coffee is) has discovered that its manufacturing process has the potential to lead to growth of a toxin known as botulinum-a poison that can cause botulism. While there have been no reported cases of anybody actually getting sick, Death Wish has notified the FDA that it will still being moving forward with a product recall of all their 11 ounce cans. Those who’ve bought their coffee in stores–most places that sold the coffee were on the East Coast of the U.S.–can return the cans for a full refund with a proof of purchase. If you bought any cans online, you can throw them out and Death Wish will provide a full refund if you request one in the month and a half or so.

Death Wish has described the recall as a proactive step in the interest of protecting their customers. This is an admirable stance to take. However, there is also an element of protecting their company from liability. U.S. law requires companies to initiate recalls in certain situations. What’s more, a recall can potentially protect a company from future liability when a real defect exists. Let’s take a look at how product recalls are handled in the U.S and how they relate to how you might sue if you’ve been heard by a recalled product or a product that is eventually recalled.

death wishProduct Recall Law

If you make, import, distribute, or sell goods to the public, U.S. law can legally obligate you to report potential issues with your product and potentially issue a recall. If you don’t do so, or don’t do so in a timely enough manner, it can result in criminal or civil penalties for you and your company. As you might imagine, it’s incredibly important to know these reporting requirements to protect your business.

In the U.S. recalls are generally handled by one of six agencies–the Consumer Product Safety Commission (CPSC), the Food and Drug Administration (FDA), the Environmental Protection Agency, Food Safety and Inspection Services, the National Highway Traffic Safety Administration, and the Coast Guard. Each agency has its own set of rules that need to be followed for reporting potential safety issues with products. In Death Wish’s case, the FDA is handling the process as they tend to handle food products.

Exactly when and how your company needs to report an issue for a potential recall varies a fair bit depending on what your product is and which agency you need to report to. However, as a rule, you’ll to report any defect in your products that could create a substantial risk of injury to customers or an unreasonable risk of serious injury or death. There are also a number of regulatory and statutory situations where you may need to report, such as where a kid is seriously hurt playing with a toy you produce.

When you become aware of an issue with your product, you’re required to report it immediately. The exact meaning of “immediately” can vary. However, you basically need to report within 24 hours of discovering information which reasonably indicates a reportable matter such as those discussed above. This doesn’t mean you can’t investigate such an issue to make sure, but don’t take your time with it. Taking longer than a week or so to investigate can land you in hot water. You’re considered to have been made aware of an issue as soon as it is received by you or somebody who works for you who should reasonably be able to recognize the significance of the information before them. After that point, agencies give you less than a week-the CPSC gives you five days tops-to get that information to the an officer of your company.

It should be noted that being potentially dangerous doesn’t require a recall in and of itself. Many products-like pocket knives-present a certain amount of danger by their very nature. Being sharp wouldn’t require a recall, being likely to shatter into many sharp pieces when used as intended likely would-a recall report generally takes into account the nature of the product to be recalled.

Most agencies recommend a policy of reporting if you’re in doubt. However, this is a bit of an oversimplification of the issue. Obviously, if you might face criminal charges for not reporting then you should report. However, there is the middle ground such as Death Wish’s recall. Their manufacturing process has the potential for danger to their consumers but there is no evidence their existing products have any issue. Recalling is probably a good idea, however there is certainly a serious publicity hit to announcing a recall. Death Wish may have a death wish because many companies have seen a recall effectively end their business. That being said, announcing a recall can protect a company from liability to some extent. If you make the recall public then a member of the public who ignores the warning may lose their case against you. Depending on how a company handles their recall it can be viewed as a subsequent remedial measure-steps taken to make an earlier injury or harm less likely to occur in the future. When this is the case, a plaintiff often can’t use these steps (the recall) as evidence of negligence of a defective product. However, this doesn’t mean that these companies are shielded from liability completely. It’s quite often to see a recall give rise to a class action lawsuit of people hurt by the defective product before the recall was announced. These lawsuits come in a number of forms, but are generally negligence or product defect lawsuits. It’s important to understand how these work if you’ve been hurt by a product that is later recalled.

Product Defects

Product defect cases exist in a few types of situations. Where there is a defect in the way a product is designed that is known as a design defect. Where there is a problem in the manufacturing process-as it was with Death Wish Coffee-that is known as a manufacturing defect. Finally, where a product fails to include clear warnings of dangers associated with normal use that is known as a labeling defect. In all these situations, a company that is any part of a distribution chain for a product may be held liable for injuries caused by a defective product.

Product defects are generally a standalone cause of action against a company. However, depending on where you live the strength of the laws may vary. Even where product defect liability isn’t available, there may be a negligence case if the company has not followed the standard safety practices of their industry.

Death Wish has taken steps to make sure nobody ever gets hurt by their product. This is both an admirable decision and potentially a preemptive step to avoid liability which could end a fledgling company such as theirs. However, while no issue with botulism has been reported, they may still face lawsuits from those who were injured but did not make the connection. That being said, they’ve protected themselves from liability if somebody gets sick after not choosing to simply chuck out their coffee. Understanding this balance–as well as you are required to report–is crucial to running a business. At the same time, understanding your rights a consumer is important when a recall such as this is issued. If you’ve been hurt by a product, you may well be able to recover for your injury or the economic losses from purchasing the product.

Jonathan Lurie


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