The COVID-19 & Food Safety Global Summit, organized by the International Association for Food Protection (IAFP) and sponsored by Marler Clark LLP PS, is a two-hour virtual international event taking place on Wednesday, July 29, 2020.

The Summit is bringing together scientific experts, regulatory officials, academics, and industry executives worldwide to better understand the threat and challenges the virus poses to food and food handlers. The current list of panelists includes LeeAnne Jackson, Co-Chair of FDA’s Food and Agriculture Sector’s Government Coordinating Council, Gudrun Gallhoff, Minister Counsellor for Health & Food in the Delegation of the European Union in Beijing, Chen Junshi, China National Center for Food Safety Risk Assessment’s Chief Scientific Advisor, John Donaghy, Nestle’s Head of Food Safety, and Markus Lipp, Head of the Food and Agriculture Organization (FAO) of the United Nations’ Food Safety and Quality Unit, as well as Marler Clark’s very own managing partner, William “Bill” Marler, among others.

The event’s agenda lists numerous relevant topics of discussion, including:

  • COVID-19, food safety and security – a global perspective
  • How can regulators support food safety and food security in times of a pandemic?
  • How can we best translate new knowledge to create best practices and promote risk reduction?
  • International Issues in Food Production
  • An overall risk-based approach for COVID-19 management includes appropriately directed hygiene protocols, training and verification.
  • Considerations for developing and implementing an optimal hygiene program
  • Best practices for implementing physical distancing
  • Suppliers and food chain dynamics

A report on the summit highlights will be published by Food Safety News and Journal of Food Protection, the official media partners.

Register for this event at: http://www.chinafoodsafety.com/covidsummit/regform_e.htm.

According to the CDC, among 23 states reporting COVID-19 outbreaks in meat and poultry processing facilities, 16,233 cases in 239 facilities occurred, including 86 (0.5%) COVID-19–related deaths. Among cases with race/ethnicity reported, 87% occurred among racial or ethnic minorities.

The animal slaughtering and processing industry employs an estimated 525,000 workers in approximately 3,500 facilities nationwide. Combining data on workers with COVID-19 and COVID-19–related deaths identified and reported through May 31 from 23 states (16,233 cases; 86 deaths) with data from an earlier assessment through April 27 (1,125 cases; five deaths) that included data from six states that did not contribute updated data to this report, at least 17,358 cases and 91 COVID-19–related deaths have occurred among U.S. meat and poultry processing workers.

Read the full report here – https://www.cdc.gov/mmwr/volumes/69/wr/mm6927e2.htm?s_cid=mm6927e2_w

Everlywell, a health and wellness company that provides at-home lab testing kits, has received an Emergency Use Authorization (EUA) from the FDA for a COVID-19 at-home collection kit. Everlywell’s EUA is the first to be issued to a digital health company that is not a diagnostics manufacturer. It is also the only EUA for at-home COVID-19 testing that is not tied to one specific lab; the company is allowed to work with a number of certified labs, allowing for large-scale testing.

Each at-home kit provides a molecular PCR test, which detects the presence (or absence) of active SARS-CoV-2 virus (i.e. coronavirus) in a “self-collected nasal swab.”[1] The kit includes an online screening questionnaire, instructions on how to collect and ship a sample to the lab, digital results within 48 hours of the sample being received by the lab, and results reviewed by an independent physician. Positive test results include a follow-up “telehealth consult” and are reported to federal and local public health agencies.[2]

The kits are limited to one per household and cost $109 each. They are available now on Everlywell’s website: https://www.everlywell.com/products/covid-19-test/.

According to GoodRx, there are currently five companies selling at-home COVID-19 tests: Pixel by LabCorp, Everlywell, Vault, Vitagene, and him & hers.[3] These at-home tests appeal to the masses; they are quick and convenient, especially for individuals who may not want to get tested in person or cannot commute to in-person testing sites.

*       *       *

[1] Everlywell. “COVID-19 Test Home Collection Kit,” https://www.everlywell.com/products/covid-19-test/.

[2] Id.

[3] GoodRx. “Can I Test for Coronavirus At Home? The State of At-Home COVID-19 Tests” (May 26, 2020), https://www.goodrx.com/blog/coronavirus-at-home-tests/.

I took a long walk today with a mask in one pocket and some portable hand sanitizer in the other.  When I did come within several dozen feet of fellow walkers or the occasional biker, I respectfully put on my mask – remember, masks likely do not protect you, but they really are to protect others.

When I drove back through town I noticed most people on the streets skipping the masks and ignoring “social distancing.”

I am not sure, given the staggering numbers of sick and dead, why some level of common sense escapes us?

The Small Business Administration’s latest Flash Report states that SBA has failed to prioritize “underserved and rural markets” and that its PPP requirements “could result in an unintended burden to the borrowers.”[1]

The report states that, because “SBA did not provide guidance to lenders about prioritizing borrowers… including rural, minority and women-owned businesses, [these borrowers] may not have received the loans as intended.”[2] According to the Center for Responsible Lending, “upwards of 90% of businesses owned by people of color have been, or will be, shut out of the Paycheck Protection Program,” in part because minority business owners are less likely to have existing relationships with major banks.[3] The center has further determined that “[r]oughly 95% of Black-owned businesses, 91% of Latino-owned businesses, 91% of Native Hawaiian or Pacific Islander-owned businesses, and 75% of Asian-owned businesses stand close to no chance of receiving a PPP loan through a mainstream bank or credit union.”

Banks tend to prioritize larger loan applications, which presents yet another hurdle for smaller minority and women-owned businesses. CBS News reports that, on average, “minority and women-owned businesses have 30% fewer employees compared to male- or white-owned businesses,” which means the value of the loans they are seeking—which are based on a business’s average monthly payroll—are likely smaller.[4]

Moreover, the PPP’s forgivable loans could end up leaving many small businesses with more debt. To have their loans fully forgiven under the PPP, business owners must allocate at least 75 percent of the funds toward payroll costs. However, SBA’s newest report found that “tens of thousands of borrowers” have used more than 25 percent of the funds to cover costs such as rent and utilities, meaning they are likely to be stuck with new debt.[5] This debt—the amount of nonpayroll costs in excess of 25 percent—must be paid back within two years.

*       *       *

[1] U.S. Small Business Administration. Flash Report: Small Business Administration Implementation of the Paycheck Protection Program Requirements (May 8, 2020), https://www.sba.gov/sites/default/files/2020-05/SBA_OIG_Report_20-14_508.pdf.

[2] Id.

[3] CBS News. “Up to 90% of minority and women owners shut out of Paycheck Protection Program, experts fear” (Apr. 22, 2020), https://www.cbsnews.com/news/women-minority-business-owners-paycheck-protection-program-loans/.

[4] Id.

[5] See supra note 1.

It is Sunday and nearly 5 million world citizens (7.85 billion) have become ill with COVIF-19.

In the United States 1.5 million have been sickened and nearly 90,000 have died and we are only 4.29% of the world population.

There is no country that is even a close second.

And, here are the projections:

The CDC reports today about COVID-19 and asymptomatic illnesses and “superspreaders.”

Superspreading events involving SARS-CoV-2, the virus that causes COVID-19, have been reported.

Following a 2.5-hour choir practice attended by 61 persons, including a symptomatic index patient, 32 confirmed and 20 probable secondary COVID-19 cases occurred (attack rate = 53.3% to 86.7%); three patients were hospitalized, and two died. Transmission was likely facilitated by close proximity (within 6 feet) during practice and augmented by the act of singing.

The potential for superspreader events underscores the importance of physical distancing, including avoiding gathering in large groups, to control spread of COVID-19. Enhancing community awareness can encourage symptomatic persons and contacts of ill persons to isolate or self-quarantine to prevent ongoing transmission.

The models vary, most based on the assumptions of social distancing.

Over that last few days I have seen both the ongoing march of illnesses and deaths and the number of people out on the road, walking and riding bikes increasing.  Yesterday the garden store was packed with people buying plants – most wearing masks. Take-out in the few restaurants in my town seemed be be booming with customers waiting on their orders several feet apart, some with and some without masks.  I think many are becoming “sick” of the isolation.  I hope that the loosening of restrictions does not make more and more of us really sick.

To Washington State’s credit, at the beginning of this pandemic, we have one of the highest illness and death tolls.  Due to actions by the State and citizens, numbers have still increased, but at a much slower pace – we have bent the curve.

Here are the grim forecasts:

I am going to try and continue focus on the health facts and urge friends, family and my firm to do the same.  Science and facts have to “trump” feelings and emotions.

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law.

President Donald J. Trump has vacillated between entreating Americans to shelter in place and tweeting support for protesters demanding an immediate end to the shutdown. When Georgia Governor Brian Kemp announced that he was relaxing restrictions despite the warnings of public health officials, mayors around the state urged local businesses not to reopen and local residents to remain at home, notwithstanding the governor’s policy. The day after Governor Kemp’s announcement, President Trump publicly admonished him for moving too fast. A week later, the President pivoted again, when White House officials announced that he would be touring the country to advocate reopening the economy.

Adding to all the uncertainty, businesses that reopen too soon or without adequate precautions currently face the prospect of private lawsuits for facilitating the transmission of COVID-19. Surprisingly, the fear of being sued may actually help reduce the chaos created by the Trump Administration’s vacillations and conflicting federal, state, and local government policies.

In the absence of clear national leadership, a multitude of government officials are sending mixed signals based on competing models and ballpark guesses about what the future holds. When intensive news media coverage of overflowing hospital wards in New York City competes with coverage of street protests in Austin, Texas, public officials face political crosswinds which may be influencing their policy decisions, especially as election season heats up.

The prospect of lawsuits against businesses that open too soon or fail to take proper precautions to prevent the spread of COVID-19 is likely to focus business owners’ attention on exercising reasonable care to avoid liability for negligence. The various considerations that define the legal standard of reasonable care—cost-benefit analysis, emerging industry customs, public safety regulations, and common sense—applied in specific contexts by the people who know them best may make the reopening process more reflective and rational than if businesses rely solely on the changing or conflicting policy statements released by public officials.

Fears that liability exposure will lead to a flood of litigation are unwarranted. Legal claims will face considerable obstacles. One problem is the difficulty of establishing causation, given the uncertainty about many aspects of coronavirus infection and the complexity of disease transmission. Nevertheless, in some cases, contact tracing may offer sufficient evidence to show that a victim contracted the virus in a defendant’s place of business.

Another problem is assumption of risk, which would bar recovery for business patrons who appreciated the dangers of contracting the illness and yet voluntarily accepted them. Whether individual plaintiffs appreciated the level of risk that they faced, and whether their patronage of the business or service was fully voluntary, will be issues that are likely to vary from case to case.

To the extent that liability insurers currently do, or in the future will, provide coverage for COVID-19-related claims, that liability protection can help businesses avoid the potentially devastating financial consequences of a successful lawsuit.

Equally important, liability insurers can be counted on to help businesses take reasonable measures to reduce the risk of transmission, such as by selling insurance only to those businesses that implement appropriate risk-reduction measures, providing premium discounts to businesses that take extra precautions, or excluding coverage for high-risk activities such as crowded gatherings. Deductibles will ensure that, although insurance prevents financial ruin, the financial sting of liability will still exist to give businesses an incentive to exercise reasonable care as they weigh the wisdom of reopening.

Public officials should resist growing calls for immunity from civil liability—calls that have unfortunately already been heeded in the state of New York, where the legislature enacted broad immunity for health care workers from medical malpractice claims during the COVID-19 crisis. Senate Majority Leader Mitch McConnell has threatened that he will not allow another coronavirus bailout bill to pass the Senate unless it includes sweeping immunity from liability for businesses.

Immunity legislation will encourage businesses to be even less mindful of taking reasonable precautions to prevent COVID-19 transmission as they face growing financial pressure to reopen.

Legislatures should instead think about how to facilitate the role that liability exposure and liability insurance can play in promoting an orderly reopening of businesses. In New Jersey, for example, a proposed bill would require insurance companies to cover business losses due to coronavirus, notwithstanding any exclusions for communicable diseases or viruses. Other states or the U.S. Congress might consider doing the same for liability coverage.

As the U.S. economy is buffeted by political winds from all directions, liability exposure can help businesses plot a reasonable course through the current coronavirus storm as they attempt to sail toward calmer waters.