Click to edit Master title style Chapter 11 Liability and the Sale of Food Many slides Copyright © 2008 by Delmar Learning Hotel, Restaurant, and Travel Law: A Preventive Approach, Seventh Edition

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Serving Food Wholesome food –Food that is safe for humans to consume

Serving Food Warranty –An assurance that a statement made or facts expressed in a contract are correct as stated or expressed

Serving Food (cont’d) Merchantable –Suitable for buying and selling Food borne Illness –Sickness caused by consuming unsafe foods or beverages

Serving Food Uniform Commercial Code Warranty –UCC –The manager’s responsibility to serve food safe for humans consumption is covered by the UCC and other state and local laws Guest Safety Local health department inspections Training or certification classes (cont’d)

Serving Food Managers will be held responsible for the illnesses suffered by their guest that are the result of consuming unwholesome food Document food handling techniques (cont’d)

Serving Food Disclose –To reveal fully managers should take all reasonable measures to ensure that food is safe to serve –Ingredients (cont’d)

Serving Food What to do when a food safety-related incident occurs: Document customer info Note what was consumed and when Encourage customer to see doctor Obtain treating doctor’s info Contact doctor to see if a foodborne illness has been diagnosed (cont’d)

Serving Food What to do when a food safety-related incident occurs: (continued) If so, notify health department officials to held determine the source and identify affected guests and employees Evaluate and modify if necessary your training and certification efforts Document your effort and notify your attorney (cont’d)

Serving Food UCC addresses the responsibility for proper food service, UCC Section “where the seller…has reason to know…that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is…an implied warranty that the goods shall be fit for such purpose” (cont’d)

Warrant of Merchantability Merchantable means goods are fit for ordinary purpose and are at least of average quality

Warrant of Merchantability (cont’d) Exists even if parties never mention it in negotiations Renders manufacturers and sellers of food virtual insurers that food is safe to eat

Merchantable Food Must be fit for human consumption, will not make people ill who eat it Does not have to be nutritional or taste good, just eatable

Merchantable Food (con’t) Inappropriate objects in food make it unmerchantable As does food infected with harmful bacteria or virus, spoiled, and undercooked

Statutory Violations Various state statutes require restaurateurs to follow specified mandates in the preparation of food

Negligence An injured diner claims the restaurant was careless while preparing the food

Customers with Allergies Restaurant patrons frequently request that certain ingredients be eliminated from their food

Food and Drug Administration FDA—federal agency that oversees food industry Objectives include promoting public health by ensuring that foods are: Safe Wholesome Sanitary Properly labeled

Food and Drug Administration Hazard Analysis Critical Control Point system (HACCP) Quality assurance scheme to identify and minimize spoilage and contamination problems during food manufacturing and service Focuses on managing risk at each of 10 operating activities, control points, common to all food service establishments (cont’d)

Truth-in-Menu Concerns Truth-in-Menu –The collective name given to laws and regulations implemented to ensure accuracy in menu wording

Truth-in-Menu Concerns (con’t) Fraud –A deliberate misrepresentation The key is honesty –Menu claims about what is charged and what is served

Truth-in-Menu Concerns Examples: –Charge for a dozen oysters…serve 12 oysters –Disclosure of service charges or other charges –Accuracy includes pricing (cont’d)

Truth-in-Menu Concerns More Examples –Preparation style –How an item is prepared –Grilled –Homemade –Fresh (means never frozen, canned, dried) –Kosher v. Kosher0style (cont’d)

Truth-in-Menu Concerns (cont’d)

Truth-in-Menu Concerns Ingredients Must be stated accurately When listed … must be right Kahlua and Cream example Maple Syrup (cont’d)

Truth-in-Menu Concerns Other descriptors to pay attention to: –Origin of product –Size (weight) –Health claims (diet, low fat, light) –FDA Regulations –Nutritional information –Health benefit claims (cont’d)

Alcoholic Beverage Service Depressant –A substance that lowers the rates of vital body activities Alcoholic content similar in –12 ounce beer –5 ounce table wine –1 ½ ounces spirits in mixed drink

Alcoholic Beverage Service Blood Alcohol Level (BAL) –A percent measurement of the concentration level of alcohol in the bloodstream –.08 is considered the legal limit for a person to operate a vehicle (cont’d)

Alcoholic Beverage Service Intoxication (Legal) –The point at which an individual’s BAL equals or exceeds the standard set by the state (cont’d)

Alcoholic Beverage Service (con’t) Liquor Licensee –An individual or entity that has been issued a liquor license by the proper state authority Liquor License –A state permit for the sale and/or service of alcoholic beverages

Alcohol Service Liability When intoxicated individuals have caused damage or injury to themselves or others, laws impose some portion of responsibility on those who sell or serve alcohol

Third Party Liability That the second party in an alcohol transaction is liable for the acts of the first party and also for any harm suffered by a third party as a result of the first party’s actions

Third Party Liability First Party –The individual buying and/or consuming the alcohol –The Drinker (cont’d)

Third Party Liability First Party –The individual buying and/or consuming the alcohol –The Drinker (cont’d)

Third Party Liability Third Party –An individual not directly involved in a specific situation relating to the sale or consumption of alcohol –The innocent pedestrian that is struck with car (cont’d)

Dram Shop Liability Dram Shop –A name given to a variety of state laws establishing a liquor licensee’s third party liability Contributory negligence

Dram Shop Liability (con’t) Restaurant liable for harm and damages to both first and third parties, if: –The individual served was intoxicated –The individual was a clear danger to him or herself –Intoxication was the cause of the subsequent harm

Food Labeling Public has become more concerned about health issues –Cholesterol –Saturated fat intake

Food Labeling Standardization of serving sizes Regulation/standardization of terms such as light, cholesterol-free, and low calorie Mandatory labeling of fat content by weight, specifying both total fat and saturated fat Limitations on health claims (cont’d)

Label Information Required Mandatory labeling of following as percentages of U.S. recommended RDA: –Total fat –Saturated fat –Cholesterol –Sodium –Carbohydrates –Fiber

Smoking Restrictions Many states and localities restrict or prohibit smoking in public buildings, including restaurants – Prohibition.—A person may not smoke in an enclosed indoor workplace, except as otherwise provided in s

Risks Associated with Donated Foods Restaurants may be motivated to give leftover/unused food to a charitable organization Good managers will verify condition of the food before it is donated to employees or people in need