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Clay Rossi
Clay Rossi
Attorney • (800) 574-4332

Waiter, there's a (horse)fly in my soup

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And so the old joke goes:


“Look here, waiter, quick,” called out a gentleman in an Austin restaurant. 


“What is it, sir?” 
“

Here is a dead fly in my soup.”


“So I see. It seems to be quite dead.” 


“Well, by Thunder, I want you to understand that I consider it an outrage.”


“I am sorry, sir, but if you are opposed to eating dead animals, you should patronize one of the vegetarian restaurants.”

17 October 1885, Newport (RI) Mercury, pg. 7, col. 5:

Burger King has dropped a meat supplier the company used in Britain and Ireland. Why? The meat supplier has been linked to providing horsemeat, the DNA of which may have made it into Whoppers. So, what's the legal recourse for eating contaminated food, if any?

Certainly, if you've suffered food poisoning your bad dining experience in actionable. The usual culprits are salmonella and e. coli. Usually the cause of action will sound under standard causes of action are negligence or defective product liability, but there is likely also a breach of warranty claim under the UCC. Generally the warranty claim has a longer statute of limitations which might mean the difference between having a claim or not.

As for proving your claim, you need to prove that you were served, and ate, contaminated food. Also key will be the time frame from the point of consumption to when you became ill. A diagnosis by you doctor is also a key component to the claim.

Is there of cause of action for merely getting “grossed out” when there is a fly in your soup or a horse in your burger? Most likely not, unless your state has strong consumer protection laws concerning product labeling which includes food. To further complicate the issue, new genetically modified (GMO) foods, like salmon, contain the DNA of other species, like eels. It is almost impossible to avoid these new frankenfoods as the FDA has ruled that the frankenfoods don't have to be labeled as GMO, and non-GMO products cannot brand themselves as GMO free. At the state level, Monsanto recently helped defeat a California GMO labeling initiative, claiming that labeling GMO would spur millions of dollars in lawsuit(s).

Given the state of the law and what is possibly in our food, eating is no longer for those with a weak stomach.