Using nuisance law to advance food safety

This Essay proposes a novel approach to the most urgent food safety problem currently facing U.S. consumers: fresh produce contaminated with virulent microbial pathogens. Despite extensive regulation, growers have been unable to rid their fields of toxic bacteria, and processors have been unsuccessful in sanitizing tainted produce before it reaches store shelves. As a result, tainted produce sickens millions of consumers every year. An emerging consensus is calling for new efforts to address one source of the problem.

Nearby cattle operations produce manure that contains harmful pathogens. When this manure escapes from grazing fields or feed lots—for example, via stormwater runoff, lagoon overflow, or dust migration—it conveys the pathogens into growing fields or into wells, rivers, and canals from which farmers draw water to irrigate or spray crops. Attempts to enlist the beef and dairy industries’ voluntary cooperation to address this problem have so far been unsuccessful. This Essay advocates for another solution: using nuisance claims to incentivize cattle operations to reduce the escape of manure, vaccinate cows against infection, and treat infected animals with antimicrobial feed additives.

Private lawsuits will complement the enforcement of existing environmental regulations that prohibit the discharge of manure into waterways or the air—regulations that have, for a variety of reasons, proven inadequate.