Food Sovereignty & Municipal Liability

Training for: Legal Notes

Question: Can a municipality be held liable if someone is sickened by food that has been exempted from State food safety laws by a local food sovereignty ordinance?

Answer: Probably not, because the Maine Tort Claims Act grants immunity from liability to governmental entities, including municipalities, for legislative acts (see 14 M.R.S.A. § 8104-B(1)). A “legislative act” includes, among other things, the adoption of any ordinance. Thus, the enactment of a food sovereignty ordinance probably does not give rise to municipal liability for claims resulting from food sales or transactions authorized under the ordinance.

But that’s hardly the whole story. Just because a municipality may ultimately be immune from liability does not mean claimants are barred from filing suit. The costs of defending against a lawsuit (attorney’s fees, etc.) are the same whether the municipality ultimately prevails or not, and they can be substantial. Moreover, the prevailing party in a lawsuit generally cannot recover its legal fees from the other party, so a municipality’s costs of defending against a lawsuit based on a food sovereignty ordinance will come out of its own pocket, win or lose.

And then there’s the matter of personal liability for producers. The sale of uninspected food or food products to the general public strikes us as a high-risk proposition, with significant potential for liability on the producer’s part in case of contamination and illness. It may well be, as some food sovereignty ordinances provide, that consumers can enter into private agreements with producers to waive liability (though we doubt this is common practice). The validity of such agreements, however, particularly in view of the public health implications, seems very much an open question. (By R.P.F.)

Question: Can a municipality be held liable if someone is sickened by food that has been exempted from State food safety laws by a local food sovereignty ordinance?

Answer: Probably not, because the Maine Tort Claims Act grants immunity from liability to governmental entities, including municipalities, for legislative acts (see 14 M.R.S.A. § 8104-B(1)). A “legislative act” includes, among other things, the adoption of any ordinance. Thus, the enactment of a food sovereignty ordinance probably does not give rise to municipal liability for claims resulting from food sales or transactions authorized under the ordinance.

But that’s hardly the whole story. Just because a municipality may ultimately be immune from liability does not mean claimants are barred from filing suit. The costs of defending against a lawsuit (attorney’s fees, etc.) are the same whether the municipality ultimately prevails or not, and they can be substantial. Moreover, the prevailing party in a lawsuit generally cannot recover its legal fees from the other party, so a municipality’s costs of defending against a lawsuit based on a food sovereignty ordinance will come out of its own pocket, win or lose.

And then there’s the matter of personal liability for producers. The sale of uninspected food or food products to the general public strikes us as a high-risk proposition, with significant potential for liability on the producer’s part in case of contamination and illness. It may well be, as some food sovereignty ordinances provide, that consumers can enter into private agreements with producers to waive liability (though we doubt this is common practice). The validity of such agreements, however, particularly in view of the public health implications, seems very much an open question. (By R.P.F.)