BACKGROUND
Following the discovery late last year that genetically engineered StarLink corn and its pesticide protein Cry9c, a potential allergen, were illegally present in Kraft Foods' Taco Bell taco shells and other consumer food products, consumers of such products filed numerous class action lawsuits seeking damages and injunctive relief. The majority of these cases were filed in Illinois state and federal courts in Chicago, a short distance away from Kraft Foods' corporate headquarters.

The first of these cases, Place v. Kraft Foods Inc., 00 C 6865, N.D. Ill., was originally flied in Illinois state court on September 27, 2000. The defendants then removed the case to the Illinois federal court. The complaint alleges that Kraft Foods "participated in the production, advertising, marketing and selling of millions of boxes of these taco shells .. and other foodstuffs which omitted disclosing that they contained trace elements of StarLink [corn] and which plaintiffs and the class members unknowingly purchased and ingested." The Place lawsuit also names as defendants Azteca Milling (the milling company that supplied Kraft Foods with corn flour), Garst Seed Company (the manufacturer and distributor of StarLink corn seeds to farmers and seed dealers) and Aventis CropScience (the creator and bolder of the intellectual property rights to StarLink corn). Plaintiffs in the Place lawsuit allege that they suffered allergic reactions to StarLink corn following the ingestion of Kraft Food's Taco Bell taco shells, however they do not seek to recover damages for a class of individuals who suffered pbysical injuries, such as allergic reactions, to StarLink corn. Rather, the Place plaintiffs seek to recover damages for a class of "all persons who purchased defendants' foodstuff products for human consumption that contain corn and corn flour supplied by Azteca Milling... and all persons who purchased foodstuff products for human consumption that contain Aventis' StarLink corn."

The Place lawsuit alleges that the defendants violated numerous state laws, including state consumer fraud and unfair and deceptive trade practices acts, and state warranty laws. The lawsuit is seeking, among other things: (a) a determination of class action status; (b) an order preventing the defendants from selling human food products containing StarLink corn; (c) a court-ordered recall of defendants' food products containing StarLink corn; (d) an order requiring defendants to disgorge all revenues they have made from their illegal conduct; and (c) unspecified compensatory damages.

Aside from the slew of cases arising from the introduction of StarLink corn in human food, there have been few consumer class actions in American jurisprudence seeking damages for the use of a non-federally approved pesticide in human food products. Perhaps the most notable case was In re General Mills Oat Cereal Consumer Litigation, 94 CH 6208, filed in the Circuit Court of Cook County, Illinois, in 1994. That case arose from the use of a prohibited pesticide, chloropyrifos-ethyl, on oats used in the production of General Mill's breakfast cereals from 1993 to 1994. The case was certified as a class action and ultimately settled with General Mills distributing $10 million worth of free cereal to members of the class

Although, there have been few cases seeking recovery for consumers who purchased human food tainted with illegal pesticides, state laws allowing such recovery are well established. Generally, consumers suing for the use of illegal pesticides in food can rely on traditional legal remedies applicable to the sale of non-conforming goods, such as the remedies provided by contract and warranty laws, tort laws and state consumer fraud and unfair and deceptive trade practices acts. This article will examine these legal remedies and their availability for consumers alleging damages from the introduction of StarLink corn in human food products.

REGULATION OF STARLINK CORN UNDER THE FEDERAL FOOD, DRUG,AND COSMETIC ACT
The presence of StarLink corn or Cry9C protein in food intended for human consumption in interstate commerce is a violation of the federal Food, Drug and Cosmetic Act. Under 2E U.S.C. § 346a(a)(1), when a pesticide residue tolerance or an exemption from such a tolerance has not been granted for a residue, any food intended for human consumption with such a pesticide residue is unsafe, and therefore considered adultered. The existing tolerance exemption for Cry9C found in StarLink corn applies only to products used or intended for non-human animal feed. Thus, under 21 U.S.C. § 346a(a)(1) and 21 U.S.C. § 342(a)(2)(B), the presence of StarLink corn or Cry9C in human food products render such products adultered under the federal Food, Drug and Cosmetic Act. Pursuant to 21 U.S.C. § 331(a), the introduction of an adultered food into interstate commerce is illegal.

WHO CAN SUE FOR DAMAGES FOR THE INTRODUCTION OF STARLINK CORN IN THE HUMAN FOOD SUPPLY?
Theoretically, any consumer of a food product line tainted with StarLink corn can sue for damages against the seller and manufacturer of the product. For example, several of the class actions filed in Illinois against Kraft Foods following the discovery of StarLink corn in Taco Bell taco shells allege only that the plaintiffs had purchased Taco Bell taco shells in the preceding year. These plaintiffs do not allege that the taco shells they purchased actually contain StarLink corn, that the taco shells they purchased were analyzed and tested positive for the presence of StarLink corn, or that they had an allergic reaction to the taco shells because of the presence of StarLink corn. As such, plaintiffs in these actions are suing because they "might' have purchased taco shells containing StarLink corn.

There is a good chance such cases will ultimately fail, or be dismissed, based on the plaintiffs' failure to sufficiently allege actual injury or damages. Courts have found allegations that a consumer 'believes" he or she "might" have purchased a defective or nonconforming good insufficient to state a claim of injury entitled to legal recourse. For example, in In re Swiss Valley Farms Litigation, No. 1-99-1784, slip op. (Ill. App. 1st Dist. June 29, 2001), the plaintiffs filed a class action against the defendant, a Wisconsin dairy cooperative, for selling under-filled cartons of milk in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.

The plaintiffs attached to their complaint the results of an undercover investigation by the Wisconsin Department of Agriculture that found 60% of the defendant's milk cartons sold at retail were under-filled. Because the plaintiffs had been loyal repeat purchasers of the defendant's milk products, they alleged that "it is statistically probable beyond the required burden of proof that plaintiffs... purchased containers of defendant's fluid milk products that were under-filled." The court dismissed the case, holding that the plaintiffs failed to adequately allege any actual injury, and thus they lacked "standing" to pursue a claim. Id. at 9. The court's decision stated:

This court has no way of knowing whether plaintiffs purchased under-filled milk cartons, correctly filled milk cartons or over-filled milk cartons, because there is no allegation of actual purchase or receipt of under-filled cartons by plaintiffs. Thus, there is no injury... We simply cannot make the leap... that plaintiffs ask us to make to statistically infer that they must have purchased under-filled milk cartons... their allegation really amount to an allegation of might.

Id., at 16-21 (italics original).1

In contrast, other class action cases filed against manufacturers and sellers of human food products containing StarLink corn, including the Place lawsuit, do affirmatively allege that the remaining food products were analyzed and tested positive for the presence of StarLink corn and that the plaintiffs suffered allergic reactions because of the presence of StarLink corn. If these allegations turn out to be true, such cases sufficiently state a claim because they allege a cognizable injury or damages, not based solely on the "belief' that the plaintiffs "might" have purchased human food products containing StarLink corn.

WHO IS POTENTIALLY LIABLE FOR THE INTRODUCTION OF STARLINK CORN IN THE HUMAN FOOD SUPPLY?
Any person or company participating in the production, distribution and sale of human food products containing StarLink corn is potentially liable for damages. Thus, not only would a direct seller, such as a grocery store, be potentially liable for selling a consumer corn chips containing
StarLink corn, but all "upstream" participants in that sale might also be liable. These potential upstream defendants would include the corn chip manufacturer or distributor, the company that milled the corn flour used to make the chips, the farmer that provided the milling company with the corn, the dealer that provided the farmer with the corn seeds, the manufacturer of the corn seeds and the developer of the intellectual property for the bioengineered corn.

THEORIES OF LIABILITY FOR THE INTRODUCTION OF STARLINK CORN IN THE HUMAN FOOD SUPPLY
Federal law does not allow consumers, or any other private entity, to sue for violations of the federal Food, Drug and Cosmetic Act. Pacific Trading Co. v. Wilson & Co. 547 F.2d 367? 368 (7th Cir. 1976). However, consumers of food products containing StarLink corn can sue sellers, and their upstream participants, under five alternative theories of liability: (a) breach of warranty; (b) violation of state consumer fraud and unfair and deceptive trade practices acts; (c) breach of contract to intended third party beneficiaries; (d) negligence; and (e) strict products liability. These five causes of action are discussed below in more detail.

A. Breach of Warranty under the Uniform Commercial Code and the Magnuson-Moss Warranty Act
The Uniform Commercial Code (UCC) and the federal Magnuson-Moss Warranty Act provide the law of warranties in the United States for the sale of goods, including food products. All states except Louisiana have adopted the provisions of the UCC by statute. Together, the UCC and Magnuson-Moss Warranty Act provide four theories of recovery for consumers who purchased human food products containing StarLink corn.

1. Express Warranty Under The UCC

The UCC provides that "[a]ny description of the goods which is made a part of the basis of the bargain creates an express warranty that the good shall conform to the description" and "[a]ny sample or model which is made a basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model" (UCC § 2-313(1)). The basis of the bargain is determined by the language of the parties and by "implication from other circumstances, including course of dealing or usage of trade or course of performance" (UCC § 2-201(3)). The UCC also provides that "[i]t is not necessary to the creation of an express warranty that the seller... have a specific intention to make a warranty" (UCC § 2- 313(2)).

Sellers are potentially liable for breach of express warranty by selling human food products containing StarLink corn. By causing food products containing StarLink corn to be packaged as food fit for human consumption and placed on grocery store shelves, sellers may be found to have created an express warranty that the products are merchantable, wholesome, appropriate and safe for human consumption.

2. Implied Warranty Of Merchantability Under The UCC

According to the UCC, a seller of goods impliedly warrants that the goods are merchantable, meaning that, among other things, the goods "pass without objection in the trade" and are "fit for the ordinary purposes for which such goods are used" (UCC § 2-314). Clearly, in the case of human food products containing StarLink corn, sellers of such products will likely be liable for breach of implied warranty of merchantability, since such products would not pass without objection in the trade and are not fit for human consumption.

3. Implied Warranty Of Fitness For A Particular Purpose Under the UCO

The UCC provides that where the seller has reason to know of any particular purpose for which the goods are required and that the buyer is relying on the seller to select or furnish goods suitable for that purpose, there is an implied warranty that the goods shall be fit for such purpose (UCC § 2-315) Sellers of human food products containing StarLink corn will likely be liable for breach of implied warranty of fitness for a particular purpose, since sellers know, or should know, that buyers of such products are seeking wholesome unadultered food fit for human consumption.

4. Consumer Claims Under The Magnuson-Moss Warranty Act

The federal Magnuson-Moss Warranty Act provides a civil remedy under federal law for a seller's failure to comply with an implied warranty arising under state law (15 U.S.C. § 2310(d)(1)(A)). Therefore, sellers of human food products containing StarLink corn may be liable under the Magnuson-Moss Warranty Act for violating any of the above UCC's implied warranties.

5. "Privity of Contract" Is Not A Bar To Recovery Against Upstream Participants In The Sale Of Human Food Products Containing StarLink Corn Under The UCC and Magnuson-Moss Warranty Act

The legal requirement of "privity of contract" limits a purchaser's warranty rights only to the direct seller from whom the purchaser acquired the goods. Thus, in states that require privity of contract to assert a breach of warranty claim, a retail buyer of a human food product containing StarLink corn can only sue the direct retail seller of that product, such as the grocery store, but generally cannot sue any upstream participants in the sale of the product, such as the manufacturer, distributor, corn milling company or farmer NATIONAL CONSUMER LAW CENTER, CONSUMER WARRANTY LAW, § 6.1 at 205 (1997). Most states, however, have abolished the privity of contract requirement under the UCC in consumer transactions, Id., §§6.2.3-6.2.4 at 206-210. Even those states that have not in general abolished the privity of contract requirement under the UCC, have specifically abandoned privity of contract as an element for a claim of breach of warranty in the sale of human food. See Suvada v. White Motor Co., 210 N.E.2d 182 (Ill.1965), overruled on other grounds by Dixon v. Chicago and Northwestern Trans. Co., 601 N.E.2d 704, 711(Ill.1992). In Suvada, the Illinois Supreme Court stated:

We have recognized that privity of contract is not essential in an action for breach of implied warranty in the sale of food... The Appellate Court has sanctioned actions for broach of warranty in a food case by a party not in privity with the seller or the manufacturer, on the ground that the implied warranty of the manufacturer or seller runs with the sale of the article... the liability of the manufacturer and vendor [of food] is imposed by operation of law as a matter of public policy for the protection of the public, and is not dependant on any provision of the contract, either express or implied.

Suvada, 210 N.E. 2d at 185-86. Therefore, in the sale of human food containing StarLink corn, all upstream participants in the sale are also potentially liable under the UCC and Magnuson-Moss Warranty

B. Violations Of State Consumer Fraud And Unfair And Deceptive Trade Practices Acts
Every state and the District of Columbia have adopted a consumer fraud act and/or an unfair and deceptive trade practices act prohibiting unfair and deceptive trade practices. Sandra B. Brantley & Beverly Moore, Jr., Commonality of Applicable State Law in Nationwide or Multistate Class
Actions -Deceptive Trade Practices (Revised), 18 CLASS ACTION REP.188, at 194 (1995) [hereinafter Brantley & Moore]. These statutes broadly prohibit any "unfair or deceptive act or practice," either with no further specificity or with an "included but not limited to" list of specific practices that are prohibited. State consumer fraud and unfair and deceptive practices acts that provide a "laundry list" of specifically defined practices generally prohibit sellers from (a) causing a likelihood of confusion or misunderstanding as to the approval or certification of goods, (b) representing that goods have approval, characteristics, ingredients, or uses that they do not have, and (c) representing that goods are of a particular standard, quality or grade if they are of another. Brantley & Moore at 194. See also, e.g., Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. The vast majority of state consumer fraud and unfair and deceptive trade practices acts do not require that the plaintiff prove scienter - e.g., that the defendant "knowingly" engaged in a prohibited practice. Brantley & Moore at 195.

Sellers of human food products containing StarLink corn have likely violated state consumer fraud and unfair and deceptive trade practices acts. As stated previously with express warranties, by causing human food products containing Starnink corn to be placed on grocery store shelves, packaged as food fit for human consumption, courts will very likely find that sellers unfairly and deceptively represented that such goods are wholesome, unadultered and fit for human consumption.

C. Breach Of Contract To Intended Third Party Beneficiaries

Several of the class action cases filed by consumers who purchased human food products containing StarLink corn, including the Place lawsuit, claim that Aventis CropScience and Garst Seed Company breached contracts to which the consumers were intended beneficiaries. State common law generally provides that a person may sue for damages upon the breach of an agreement or promise to which be or she was the intended third party beneficiary. RESTATEMENT (SECOND) OF CONTRACTS, § 302, et seq (1979). For example, in Ratzlaff v. Franz Foods of Arkansas, 468 S.W.2d 239 (Ark. 1971), the plaintiff, a dairy farmer, filed suit for damages against a subsidiary of Tyson's Foods for discharging noxious waste into the city's sewer system that polluted a stream running through the farmer's property. The plaintiff's complaint alleged that the defendant's conduct was a breach of an agreement it made with the city to remove certain noxious waste from its deposits into the city's sewer system, and that one purpose of that agreement was to prevent harm to landowners located down-stream from the city's sewage facilities. The Arkansas Supreme Court held that the plaintiff stated a viable claim against the defendant for breach of an agreement to which the plaintiff was the intended third party beneficiary.

Similarly, the Place complaint alleges that Aventis CropScience breached its agreement with the federal Environmental Protection Agency to contractually require farmers who licensed StarLink corn seeds to employ certain specified procedural safeguards to ensure that StarLink corn was segregated from other types of corn approved for and intended for human consumption, and that the intent of that agreement was to protect the health of consumers of human food products.2  The Place complaint also alleges that Garst Seed Company breached its licensing agreement with Aventis CropScience that required Garst Seed Company to adequately inform its seed dealers and farmers to whom it sold StarLink corn seeds of the above segregation requirements and specified procedural safeguards to ensure that StarLink corn was not commingled with other types of corn that were approved and intended for human consumption, and that the intent of that agreement was to protect the health of consumers of human food products.3  If these allegations are proven true, Aventis CropScience and Garst Seed Company would be liable for damages to consumers who purchased human food products containing StarLink corn.

D. Negligence

Under the common law of torts, one can be liable for negligence by breaching a duty of care, recognized by law, requiring the person to conform to a standard of conduct and thereby causes loss or damages to the interests of another. W. PAGE KEETON, ET AL., PROSSER AND KESTON ON THE LAW OF TORTS, §30, at 164-165(5th Ed. 1984). Most states, however, have adopted the "economic loss doctrine" which bars negligence claims by purchasers of goods where the only damages are economic losses constituting qualitative defects in the goods themselves (e.g., where there is no claim of personal injury or property damage other than a qualitative defect in the good at issue). See Moorman Mfg. Co. v. National Tank Co., 435 N.E.2d 443 (Ill.1982). The reasoning behind the economic loss doctrine is that cases asserting negligence for the sale of inferior or defective goods, without accompanying personal injury or property damage, are more appropriately handled by existing warranty laws. Id. at 448-49

Consequently, consumer lawsuits seeking to recover only economic losses for negligence in the sale and production of human food products containing StarLink corn will be barred in most states. However, sellers and upstream participants in the sale of human food products containing StarLink corn that caused an allergic reaction in a consumer would likely be liable to that consumer for negligence arising from the breach of a duty owed to that consumer to provide safe unadultered food fit for human consumption.

E. Strict Products Liability

Lastly, state courts have also recognized claims for common law strict products liability arising from personal injury caused by the sale of human food unfit for consumption. Specifically, a seller and all upstream participants will be strictly liable for personal injury damages caused by a substance in the food where the consumer would not reasonably have expected to find the substance in the product. See Jackson v. Nestle-Belch Inc., 589 N.E.2d 547, 550 (Ill.1992); RESTATEMENT (SECOND) OF TORTS, § 402A, cmt. e (1965). Thus, as with negligence, sellers and upstream participants in the sale of human food products containing StarLink corn that caused an allergic reaction in a consumer will be liable for damages based on strict products liability.

CONCLUSION
The discovery of StarLink corn in Kraft Foods' Taco Bell taco shells and other corn food products has raised consumer awareness of the potential public health dangers from bioengineered foods. The StarLink debacle has also heightened awareness that the federal government needs to increase regulation of genetically engineered foods, and hold biotechnology companies that manufacture them accountable for harm such foods may cause.

To date, those responsible for causing human food products containing StarLink corn to enter the marketplace have not been held accountable to consumers, despite Aventis CropScience's nebulous statement that it is "committed to continuing cooperation with affected parties to treat them equitably and fairly."4  Fortunately, there are several civil remedies available to consumers. However, the damages sustained by any individual consumer will almost certainly be insufficient to justify the expense inherent in filing an individual lawsuit As such, the current class action lawsuits are likely the only practical remedy available to consumers to recover damages they sustained from the purchase of food products tainted with StarLink corn and to deter similar future occurrences.

1/ This decision has been criticized because the court allowed the defendant to benefit from its undisputed selling of under-filled milk cartons, while precluding any avenue of recovery for consumers who, as a whole, were clearly damaged. In other cases, courts have accepted statistical evidence by competent authorities as an appropriate method to prove damages. See Thoreon V. Milwaukee & Suburban Transport Company, 201 N.W.2d 745, 750 (Wis. 1972); In re Domestic Air Transportation Antitrust Litig., 137 F.R.D. 677, 689-92 (N.D. Ga. 1991); and In re Corrugated Container Antitrust Litig., 80 F.R.D. 244, 251-52 (S.D. Tex. 1978). Proof of damages may be inferential or circumstantial rather than direct. CHARLES MCCORMICK, DAMAGES, § 14 at 53 (1985). Such proof generally only requires the plaintiff to prove that it is more probable than not that the defendant's conduct caused the plaintiff damages. Service Road Corp. v. Quinn, 698 A.2d 258,263 (Conn. 1997); Malooly v. Alice, 621 N.E.2d 265,265-69(111. App. 1993); and NATIONAL CONSUMER LAW CENTER, UNFAIR AND DECEPTIVE ACTS AND PRACTICES, 1998 supplement, § 7.5.2.1 at 94. In the case of defective or tainted consumable food products, where consumers generally do not retain portions of the product for more than a few days, consumers could be routinely injured by food manufacturers without any remedy if statistical proof of injury is not appropriately recognized by the legal system.

2/ The complaint in Place further alleges that;
Under the terms of that agreement, Aventis agreed to take responsibility for keeping StarLink out of the human food supply. Aventis promised to tell growers of StarLink that it could not be sold for human consumption, and to have growers sign a "Grower Agreement" to that effect. Aventis also promised the EPA that StarLink seeds would come with a "Growers Guide" repeating the restrictions, including the need for a 660-foot buffer strip between StarLink and any other corn varieties. Lastly, Aventis promised that growers who bought the seed would also receive two letters of reminder about the restrictions (at planting and harvest times), and that Aventis would conduct a post-harvest survey to ensure rules were followed. Pittsburgh Post-Gazette, December 4, 2000. However, despite this contractual requirement, "[w]hat was found, according to industry officials, is that not all farmers had signed required contracts [with Aventis] obligating them to follow certain procedures intended to keep StarLink out of the food supply." Chicago Tribune, October 15, 2000. According to the Des Moines Register, "[g]overnment officials have said Aventis was supposed to ensure that fanners kept StarLink corn separate from other varieties but failed to do so." Des Moines Register, October 18, 2000. "A spokesman said Iowa Attorney General Tom Miller's office had received about a dozen calls from StarLink growers. 'Most tell us they were not told about the restriction,' said Miller aide Bob Brammer." Des Moines Register, October 25.2000.

3/ The complaint in Place also alleges that:
[for] the [ segregation] plan to work, information about StarLink would be passed from Aventis to the seed companies; then the seed companies would communicate it to its dealers, who in turn tell farmers who bought StarLink." Pittsburgh Post-Gazette, December 4, 2000. Thus, under the terms of the licensing agreement between Aventis and Garst, Garst was required to inform its dealers and growers of StarLink corn seeds of the segregation requirements. However, Garst did not always convey the segregation restrictions to its dealers and growers.
According to the New York Times:

Randy Kohorst, a 43-year old corn and soybean farmer in Arcadia, Iowa, says he planted 200 acres of StarLink. But he says he was told nothing by the Garst Seed Company of Slater, Iowa, which sold him the seed, about buffer zones or marketing restrictions.

New York Times, December 11, 2000. Similarly, the Des Moines Register reported:

Butler County farmer Jim Norton says he received no special warnings last spring when he purchased seed for StarLink . . he was never told to segregate StarLink from other corn, and it now appears that many other farmers were not told either . . . Norton said he thought StarLink could be grown and sold like any other corn. A tag on the seed bags seemed to say so, Norton said. It says: "You are licensed upon purchase of this product only to produce forage or grain for food, feed or grain pnocessing." Jim Erikson, the dealer who sold the seed to Norton, said he didn't recall receiving any information about restrictions. He said the seed bags bore nothing that he considered to be a warning label.

Des Moines Register. October 25, 2000.
According to a representative of the Iowa Attorney General's office, "a few farmers who grew StarLink were told by seed dealers not to worry about the rerstrictions, that EPA was on the verge of approving StarLink for human consumption. By the time they harvested their crop there would be no reason to separate StarLink." Pittsburgh Post-Gazette, December 4, 2000. Other news accounts have similarly reported that "warnings were accompanied by a wink and a nudge, together with advice to the effect that 'government hasn't approved it for human use yet, but this is just red tape and it will be OK by harvest time,"' Saint Paul Pioneer Press, December 3, 2000.

4/ Aventis CropScience USA Holding Inc., Aventis CropScience Commitment to Resolving the StarLink Situation, http://www.us.cropscience.aventis.com/AventisUS/

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