Safeway Sued for Failure to Notify Consumers of Recalled Food

Supermarket Could Have Used Bonus Card Data to Contact Individuals Who Purchased Tainted Eggs & Peanut Products, But Didn’t


Safeway should have known that Dee Hensley-Maclean purchased peanut butter crackers and Nutter Butter sandwich cookies that were part of a nationwide recall of products tainted with Salmonella.

That’s because Hensley-Maclean used her Safeway Club card when she purchased those products. Safeway’s computers should have had her Ravalli County, MT, mailing address, phone number, and email address. And even though those cookies and crackers could have put Dee or one of her two teenage kids in the hospital with a life-threatening case of salmonellosis, Safeway made no attempt to warn her.

Today, along with a San Francisco woman who bought contaminated eggs at her local Safeway, and with the backing of the nonprofit Center for Science in the Public Interest, Hensley-Maclean filed a lawsuit against the California-based grocery giant. In a complaint filed today in California Superior Court, the women ask that they and others who bought recalled food be refunded the price of those purchases, and that Safeway commit to using its Club card data to contact consumers in the event of future recalls.

“As a concerned parent I take care with my purchases and I assume that the foods we bring home from Safeway will be safe to eat,” said Hensley-Maclean, a 53-year-old civic volunteer. “If Safeway knows that there is a problem, and they know how to get in touch with me, quite frankly I’m astonished that they wouldn’t try to spare me or my children from a preventable foodborne illness.”

Hensley-Maclean also purchased some similar snack foods made with peanuts at Costco. But unlike Safeway, Costco uses its membership data to contact consumers who purchased recalled food, and Hensley-Maclean received a letter from that company advising her not to eat the food and instructing her how to get a refund.

Jennifer Rosen, a 40-year-old drama and Improv teacher, learned from a neighborhood listserv that the eggs she purchased from Safeway might have been contaminated with Salmonella. She and her family had already consumed several of them—some when they nibbled on raw cookie dough—though none of the Rosens became ill. Rosen was stunned that Safeway didn’t contact her and warn her not to eat the contaminated eggs, even though she, like Hensley-Maclean, used her Safeway Club card when she made her purchase.

“My kids are little so I worried that if they got sick, they could get really sick,” Rosen said. “When I had my husband check the numbers on the carton, I couldn’t believe we had contaminated eggs. Safeway sends me emails all the time with paperless coupons. I can’t believe they wouldn’t text or email me with news of a recall.”

Safeway is one of the biggest grocery chains that does not have a system that uses loyalty card data to notify consumers who purchased recalled foods. Ralphs, Kroger, Walmart, Sam’s Club, Costco, Giant Food, Harris Teeter, Wegmans, and ShopRite all routinely issue food safety alerts using a variety of methods, including emails and automated phone calls, according to CSPI. Examples of Costco’s alerts from the 2009 peanut-product recall are here and here.

“Safeway aggressively uses its Club card data to churn out coupons, analyze its customers’ shopping habits, and otherwise boost sales,” said CSPI litigation director Steve Gardner. “Yet when it knows it has sold products that may be contaminated with E. coli, Salmonella, or other hazards, it does not use its robust marketing database to prevent illnesses or deaths. That is hardly the “safe way” and just shows Safeway’s reckless disregard for the health and safety of its shoppers.”

CSPI notified Safeway in May that it might seek a court order directing the company to notify customers who bought food subject to Class 1 recalls if the company did not agree to do so on its own. In a letter to Safeway, CSPI said that selling food with deadly contaminants makes those foods “misbranded” and “adulterated” under federal law and California’s Health and Safety Code. Refusing to notify consumers of the fact that they are at risk is a violation of California’s Business and Professions Code.

Besides CSPI’s litigation unit, the plaintiffs are represented by Craig Briskin and Steven A. Skalet of the Washington, D.C. law firm of Mehri & Skalet, PLLC, and Daniel T. LeBel of the San Francisco-based Consumer Law Practice. Skalet’s firm earlier worked with CSPI to obtain a historic agreement with Kellogg that set nutrition standards for the foods that company markets to young children.

In February of 2009, CSPI publicly called on the supermarket industry and other retailers that use bonus or loyalty card programs to contact customers who bought recalled food. In addition, for customers who used a credit card to pay for the food, companies could use their bonus card data to automatically refund the purchase price of the recalled items, according to CSPI. 

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