Safeway Sued for Failure to Notify Consumers of Recalled Food

Safeway is being sued for failing to notify its shoppers about a Salmonella recall, though it had the tools to do so via its Safeway Club Card program. Safeway denies this claim, saying it's not always possible to reach shoppers via lotalty data, but it makes every effort to alert its shoppers through other means.

Dee Hensley-Maclean, a shopper who purchased peanut butter crackers and Nutter Butter sandwich cookies that were part of a nationwide recall of products tainted with Salmonella, and a San Francisco woman who bought eggs that might have been contaminated with Salmonella at her local Safeway are suing the grocer with the backing of the nonprofit Center for Science in the Public Interest.

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.

According to CSPI, Hensley-Maclean used her Safeway Club card when she purchased those products, so Safeway’s computers should have had her Ravalli County, Mont., mailing address, phone number, and email address, yet Safeway made no attempt to warn her.

While it may not have used its club card, Safeway said it did notify its shoppers of the recall. "Safeway notifies its customers of Class I recalls consistent with all legal/ regulatory requirements," a Safeway spokesperson told Progressive Grocer. "In addition to press releases, Safeway voluntarily posts on its web site recall information concerning private label/ Safeway brand products, products sold in our meat, deli and bakery departments, or products otherwise sold without a supplier/ manufacturer label."

Safeway's spokesperson continued: "Our web site also directs customers to related government web sites that provide more information about Safeway and non-Safeway recalls. Each recall is reviewed on a case-by-case basis to determine whether it lends itself to other, additional types of notification. For instance, we have posted recall signs at the point of purchase in our stores; provided customer recall information on cash register receipts; and used Club Card data to make automated or personal telephone calls to customers regarding recalled products."

CSPI contrasted Safeway with membership club retailer Costco, where Hensley-Maclean also purchased some similar snack foods made with peanuts. But unlike Safeway, CSPI noted, 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.

“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 said it 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.

This is not the industry norm, according to Safeway, and those shoppers who belong to loyalty programs give out all of their contact information. "One size does not fit all," said Safeway's spokesperson. "Indeed, less than 50 percent of all grocery retailers even have Club Card programs, thus the ability to contact customers individually is not an industry norm. Shoppers are not required to provide contact information to obtain a Safeway 'Club Card' frequent shopper card. Neither do they purchase a membership, which requires them to supply personal contact information, as do shoppers of retail clubs like Costco. We consider the information/ data that is available to determine how to best provide recall information to our customers."

The Center for Science in the Public Interest is a nonprofit health advocacy group based in Washington, D.C., that focuses on nutrition, food safety, and pro-health alcohol policies. CSPI is supported by the 900,000 U.S. and Canadian subscribers to its Nutrition Action Healthletter and by foundation grants.