George Campbell of Pinsent Masons, the law firm behind Out-Law.com, said a recent recall announced by Mars should serve as a reminder of the need to ensure that clear and effective protocols are in place to ensure affected products can be recalled and that contracts are framed in a way that enables liability to be passed on to those at fault.
Late last week, chocolate maker Mars announced that it was recalling a range of its products, including certain bars of Galaxy chocolate and packets of Minstrels and Maltesers Teasers, because of the "potential presence of Salmonella" in ingredients used to make the products. The issue was identified during a "routine testing process", Mars said.
Mars issued a notice in which it specified precisely which goods were being recalled as a "precautionary" measure. It advised consumers not to eat any of the products from the batches identified in its recall notice.
"A small number of these products have been distributed, and although we've had no related complaints, as a precaution we have made the decision to voluntarily recall the products potentially affected by this issue in order to ensure the safety and confidence of our consumers," Mars said.
A spokesperson for Mars Chocolate said the company was "working closely with the relevant food safety authorities and our customers to ensure that the affected products are no longer available for purchase".
"The case highlights the importance of having proper product recall processes in place so that when problems are identified with goods produced those goods can be quickly withdrawn from sale," Campbell said. "It is vital that products produced are traceable through the use of batch and lot numbers."
"From a producers' perspective, it is also important to maintain effective records of where goods have been distributed, while retailers should be able to look back at their records to know where from and when goods have been supplied," he said.
Campbell said that retailers will want to be recompensed for goods they have bought that have to be recalled, while manufacturers will want to ensure that their expense in underwriting those compensation payments can be passed on to suppliers where the fault for the recall lies with them.
"As well as potential legal liability, reputational damage is also of major concern in a product recall scenario," Campbell said. "Robust contractual provisions will play a major role in mitigating and allocating the liabilities that may arise but also in ensuring that prompt action is taken to minimise the potential damage to brands. Having appropriate insurance cover in place will also form part of the strategy to deal with products recall risks and costs."