Pretoria - The “donkey” meat story is scandalous in many respects. What it isn’t is a food safety issue.
Ethically and legally there simply shouldn’t be undeclared pork, beef, donkey or goat or anything else in your mince, sausages or burgers. But a bit of “foreign” meat won’t necessarily make you sick.
So what rights and recourse do you have, then, as a consumer if food you’ve bought does make you sick, because it hasn’t been stored or prepared properly, or because it’s been chilled and reheated once too often?
Well, the Consumer Protection Act (CPA) gives us as consumers the right to expect to be sold goods that are of good quality and won’t cause us any harm, and if that proves not to be the case, we can hold the supplier responsible.
That’s one of the most significant changes that the CPA made to consumer rights when it came into force two years ago – consumers no longer have to prove negligence on the part of the supplier of a product that caused them harm.
Section 61 provides that the producer, importer, distributor or retailer of a product is “strictly liable” for any harm caused where the product was unsafe in some way.
Everyone in the supply chain is “jointly and severally liable”.
Right, that sounds very protective.
But clearly there must be proof that a particular product caused the harm.
That’s fairly straightforward in the case of a toy scooter with a defective wheel and a child who fell and broke her arm when the wheel snapped off, for example.
But it’s not so easy when it comes to food.
What got me thinking about all of this was an e-mail I received from Prabashni Govender, who claims that her children began vomiting soon after eating McDonald’s meals.
The incident happened on February 20 at the Isando branch of the fast food chain in Ekurhuleni.
Between them, her three children – aged between six and 11 – ate “kiddies” nuggets and chips and a “kiddies” cheese burger and chips, just before 6pm.
The vomiting started at about 9pm, Govender said.
First her six-year-old son, then her eight-year-old daughter, and a short while later, the 11-year-old.
“By this time I figured that something must have been wrong with the food that we had eaten at McDonald’s,” she said.
“I also started feeling very sick and my tummy was hurting…”
She and her husband had eaten Cajun burgers.
The children were taken to a doctor the following day and Govender presented a medical certificate to the manager of the McDonald’s restaurant in Isando.
On it the doctor had written the word “gastroenteritis”.
“The doctor who saw my kids said they were very dehydrated and questioned me about what they had eaten and when, as well as when they started vomiting.
“Because they all had the same symptoms, she concluded that it was food poisoning, and they were off school for two days,” Govender said.
“The food poisoning could have arisen in different ways – food standing too long, refried food, or expired food being served,” said Govender, who has worked in the food industry.
She asked McDonald’s to reimburse her expenses, including the doctor’s bill, medication, her two days off work, cellphone calls, petrol and the medication she bought over the counter for her “cramping”.
Total: R7 435.
In response, Govender got a letter from the company’s claims loss adjusters, who underwrite McDonald’s insurance policy, asking her for, among other things, “confirmation by way of a medical report of the bacterial/viral contaminate responsible for the illness”.
“Kindly provide a causal link between the product consumed and the stated bacterial/viral agent, name of which would be required, and the product consumed at the store, as well as the medical term for the illness suffered.
“We note that ‘gastroenteritis’ is a common referral to food poisoning and can be caused by various factors/pathogens – a more specific description is required. Unfortunately at this point, no proof has been provided linking the illness to the food consumed at the store.”
At that point, Govender reported the case to Consumer Watch.
I asked her whether her doctor had been able to provide the required information and “proof”.
“I have called the insurance company, asking them what kind of proof they would like, but I didn’t get a proper answer,” she said.
“I’ve since got a letter stating that my claim has been declined.”
The case got me wondering to what lengths a consumer would have to go to prove that it was something in particular they had eaten that made them sick, thereby giving them a valid claim against the company or companies that supplied the offending food and whether this was practically possible.
I asked the question of McDonald’s SA.
Corporate affairs director Sechaba Motsieloa replied that based on independent legal advice sought by McDonald’s, Govender had to prove, based on a number of probabilities, that the illness was caused by the McDonald’s food that she and her children consumed.
And this is no simple matter.
“Mrs Govender would have had to have remnants of the meals eaten by both her and her children tested in order to identify the contaminant,” Motsieloa said.
“The next step would have been for pathology tests to be conducted on Mrs Govender and her children by testing their saliva or similar bodily fluids.
“If the fluids/remnants tested all yielded the same contaminant, then it would be more probable that the contaminant originated from the consumed food.”
None of that was provided for pathological testing, he said, hence the claim was denied.
“There were no other customer complaints of stomach ailments on the day in question.
“Based on these facts, our independent consultants concluded that it is highly unlikely that the source of the family’s stomach ailments was from the consumption of McDonald’s food.”
In other words, a person’s “bodily fluids”, collected during a food poisoning bout, would have to be tested, with remnants of the alleged offending food, to establish proof that one caused the other.
That requires an awful amount of dedication – especially when one is feeling ill – and not inconsiderable expense, too.
Too much, I suspect, for most people.
And if you’ve eaten in a restaurant, unless you have taken a “doggie bag” home with you, you have no way of testing the food remnants to see if the “nasties” found in your system are also lurking in the food you ate.
Therefore, the law sounds great, but proving your case is no simple matter.
To be fair – without passing any comment on the merits of this case at all – a few consumers make false claims against companies in their requests for compensation, so companies are justified, to some extent, to question the claims, and ask for proof in some cases.
Not too long ago a man complained about a company that hadn’t compensated him for his medical expenses relating to his child eating “expired” yoghurt.
He said his daughter had contracted bronchitis as a result of eating yoghurt that was three days past its “best before” date.
He explained this by saying that the bronchitis was a result of her sweating through the night, “which was caused by the expired yoghurt she ate”.
Yoghurt has a relatively long shelf life, and it is perfectly okay to eat it even two to three weeks beyond its best-before date, with no ill effects.
The child might well have had bronchitis, but the disease is caused by viruses, bacteria and other particles that irritate the bronchial tubes, not by eating yoghurt three days beyond its best-before date. -
WHAT TO DO
If you eat out at a restaurant or buy a ready-made meal and start vomiting a short while later, forget about submitting a doctor’s note to the company, claiming that it must have been its food that made you ill, and expecting it to compensate you.
Of course, as Dr Harris Steinman, director of Food & Allergy Consulting and Testing Services, points out, if many people fall ill after eating food from an outlet, a bacterial agent does not need to be proved for such a claim to succeed.
But you probably won’t know that at the time you’re experiencing those “food poisoning” symptoms, so it’s best to assume that you’re on your own.
“If someone becomes ill and suspects a particular meal or product, they need to get to their doctor to have the symptoms – diarrhoea, for example – collected and cultured, to determine the causes of food poisoning, such as salmonella,” Steinman said.
Ronel Burger, head of the Food Safety Initiative at the Consumer Goods Council of SA, says: “Consumers must complain immediately when they get symptoms of food poisoning or suspect food poisoning. Contact the company’s consumer call centre and ask for a food poisoning questionnaire, which should include all the relevant questions pertaining to an investigation of the incident.”
The company – a food outlet or manufacturer of packaged goods sold in a supermarket – will want to know the following:
* What time did you consume the product?
*What time did the symptoms start?
* Nature of the symptoms?
*How did you store the product?
*Was the product packaging damaged?
* What was the expiry date of the product?
* Did you reheat the product?
* In what container did you reheat it?
* What was the time lapse between buying the product and consuming it (fast food outlets)?
*Did you consume any other food products/beverages during the same time?
“Consumers should see a doctor as soon as possible to verify symptoms and ensure pathology tests can be conducted,” Burger said.
Visit www.cgso.org.za or call 0860 000 272. - Pretoria News