A class action lawsuit says Safeway failed to notify its regular customers about a Salmonella recall, even though it had the tools to do so through its Safeway Club Card program.
But Safeway says it's not always possible to reach shoppers via its loyalty program, although it says it attempts to do so in other ways.
Filing the complaint in California are two Safeway shoppers, Dee Hensley-Maclean of Montana and Jennifer Rosen of San Francisco, with the assistance of the Center for Science in the Public Interest (CSPI).
Hensley-Maclean said she bought peanut butter crackers and Nutter Butter sandwich cookies that had been recalled because of Salmonella contamination. Rosen said she bought Salmonella-contaminated eggs.
The women argue that they and others who bought recalled food should be refunded the price of those purchases. They also want Safety to commit to using its Club Card program to contact consumers about 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.”
Safeway denies that it failed to notify Hensley-Maclean, Rosen and other shoppers of the recall, but resorts to legalese in making its defense.
"Safeway notifies its customers of Class I recalls consistent with all legal/ regulatory requirements," a Safeway spokesperson told Progressive Grocer,a grocery industry newspaper. "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."
Not every grocery chain is as defensive about its response to recalls.
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.
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.”
In fact, 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.
“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.