Overuse of Antibiotics in Concentrated Animal Feeding Operations: Regulation and Tort Law

By Shapiro, Sidney A. | Environmental Law, Summer 2017 | Go to article overview

Overuse of Antibiotics in Concentrated Animal Feeding Operations: Regulation and Tort Law


Shapiro, Sidney A., Environmental Law


This Essay explores the potential role of the tort system to plug the regulatory gap created by the reluctance of the Food and Drug Administration (FDA) to reduce the use of antibiotics in animal food production despite increasing evidence that this practice increases the risk of human infections that cannot be treated by available antibiotics. This regulatory gap could be addressed if plaintiffs were able to establish that antibiotic use is a product defect, but this will be difficult because of the requirements of proof in a tort action including establishing that a defendant was the cause of the plaintiff's antibiotic-resistant infection. Despite these hurdles, a plaintiff could potentially succeed, which may be the only way to deter the risk to the public caused by the use of antibiotics in animal food production until FDA acts to protect the public.

I     INTRODUCTION                                     558
II    THE PUBLIC HEALTH RISK                           558
III.  REGULATION VERSUS TORT LAW AS A RESPONSE         562
IV.   THE RELUCTANT REGULATOR                          566
V.    PRODUCTS LIABILITY LITIGATION AS AN ALTERNATIVE  571
       A. Legal Standards of Liability                 572
          1. Manufacturing Defect                      572
          2. Design Defect                             573
             a. Consumer Expectation Test              574
             b. Risk-Utility Test                      576
             c. Hybrid Test                            578
       B. Causation                                    579
VT.   CONCLUSION                                       580

I. INTRODUCTION

The development and proliferation of antibiotic-resistant bacteria has increased the risk that humans will develop infections that are resistant to treatment by antibiotics. The Food and Drug Administration (FDA) has been aware of this public health risk for decades, but its only effort to regulate came in June 2015, (1) which only partially addressed the risk. Since there are good reasons to believe that FDA's regulatory effort will fall short of protecting the public, this Essay explores the potential of the civil justice system to fill this gap in public health protection.

The outburst of health, safety, and environmental legislation in the 1960s and 1970s was, in significant part, a response to the failure of state law to adequately protect people and the environment. (2) The need for federal regulation arose in part because the civil justice system is constrained by a number of aspects of tort law that limit its effectiveness in protecting the public. These same limitations are likely to constrain tort law in deterring the overuse of antibiotics in animal-food production, but these hurdles are not insurmountable. This Essay examines the potential success of a product liability lawsuit by someone who becomes ill after eating pork or poultry contaminated with antibiotic-resistant bacteria.

More broadly, this Essay explores the roles of regulation and tort law in protecting the public from antibiotic-resistant bacterial infections in four steps. Part II describes the risk to the public of the use of antibiotics in animal production. Part III considers the reasons why, as a general matter, it is preferable to use regulation to address public health risks. The tort system, however, can be an important backup to regulation when, as here, it appears that regulators have failed to adequately address a public health risk. Part IV describes and evaluates FDA's response to the development and proliferation of antibiotic-resistant bacteria. This Part also explains why FDA's efforts are likely to be insufficient to protect the public. Finally, Part V evaluates whether this gap in protection can be reduced using product liability law. The conclusion is that successful litigation will be hampered by the same limitations that make tort law a less successful way to respond to public health risks than regulation. …

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