Overuse of Antibiotics in Concentrated Animal Feeding Operations: Regulation and Tort Law

Abstract

This essay explores the potential role of the tort system to plug the regulatory gap created by the reluctance of the Food and Drug Administration (FDA) to reduce the use of antibiotics in animal food production despite increasing evidence that this practice increases the risk of human infections that cannot be treated by available antibiotics. This regulatory gap could be addressed if plaintiffs were able to establish that antibiotic use is a product defect, but this will be difficult because of the requirements of proof in a tort action including establishing that a defendant was the cause of the plaintiff’s antibiotic resistant infection. Despite these hurdles, a plaintiff could potentially succeed, which may be the only way to deter the risk to the public caused by the use of antibiotics in animal food production until FDA acts to protect the public.