The drafters of the directive of July 25, 1985, on the legal liability for defective products are explicit on this point: "the determination of the defective character of a product must be made not on the basis of the unsuitability of the product for use, but on the basis of the lack of safety that the general public may legitimately expect". As society becomes more and more consumer-oriented, producers must be quick to respond to demand, but this speed can lead to defective products.

This was the case on May 25, 2021, when several establishments of the Leclerc hypermarket were obliged to recall and withdraw from sale in store a defective food product, involving risks to human health. It was about aperitif cakes containing sesame seeds contaminated by ethylene oxide in high quantity, a pesticide classified as carcinogenic and mutagenic by the European Union. If today, no sick consumer has been identified and no complaint has been filed, the long-term health
consequences of the marketing of such a product do exist.

However, in the hypothesis where consumers would have been contaminated by the food product, the question arises to know if the directive of 1985 relating to the responsibility for the defective products could apply to food products, and to know which of the salesman, i.e. the Leclerc sign, or the producer of the litigious product would be likely to see engaging its responsibility on this ground.

Thus, it is appropriate to deal with this subject by answering the question of whether a food product, intended for human consumption and containing toxic substances, is a defective product within the meaning of the European directive of 1985?

In the case in point, food products fall within the scope of the 1895 directive on liability for defective products (I), but the food sector presents difficulties in identifying the producer responsible (II), which is often unknown and which should be clarified.

I) The applicability of the Directive on liability for defective products to food products.
The 1985 European Directive takes into account the existence of several conditions relating to the products in question in order to engage liability for defective products. Indeed, it is necessary to determine the existence of an effective putting into circulation (A) of a product having a defective character (B).

A) A product intended for consumption and put into circulation
Liability for defective products only applies to certain types of products. Indeed, article 2 of the Directive, transposed into domestic law by article 1245-2 of the Civil Code, provides that only movable property, even if it is incorporated into real property, is covered by the Directive. Article 1245-2 of the Civil Code goes even further by considering that the products of the soil, of breeding, of hunting and of fishing also fall within the scope of the regime relating to liability for defective products. Thus, the expression "product" must be understood broadly, and covers raw materials as well as finished products or components. In French law, article 528 of the Civil Code recalls that movable property is by nature property "that can be transported from one place to another, either because it moves by itself, or because it can only change its place by the effect of a foreign force". A food product is thus understood as a product likely to enter into the regime of liability for defective products, since it is a movable good. However, the simple characterization of a movable good is not enough, it is necessary that this product has been put into circulation by the producer. This notion of putting into circulation has not been defined by the directive, but it encompasses several cumulative conditions that must be analyzed in order to know if the litigious food product meets all the conditions of putting into circulation. First of all, before analyzing the very notion of putting into circulation, it is necessary to position the transitional law in this case. Indeed, since the Directive is not retroactive, liability for defective products will only be applicable if the first time the product was put into circulation was after the transposition of the Directive into French law, i.e. after the law of May 19, 1998. In the case in point, it is obvious, given that the directive has been incorporated into our domestic law for many years and that a food product contains a relatively limited consumption date, that the food product was put into circulation after 1998. Then, article 7 of the directive and article 1245-10 of the civil code provide that only the damage resulting from the defects former to the setting in circulation will enter the field of the responsibility of full right. In other words, the defect must necessarily have existed before the product was put into circulation, in order to rule out any possibility that the defect might result from a cause subsequent to the sale. In the case in point, it has been scientifically proven that the defect in the product results from the treatment of sesame seeds with a toxic pesticide at the time of manufacture. Therefore, the defect is well prior to the release of the product. Finally, it is also necessary to take into account the 10-year foreclosure period which allows producers to escape all responsibility 10 years after the product was put into circulation. Here, taking into account the nature of the product and the expiration date of the products in question, we can deduce that the product was put into circulation less than 10 years ago, and that consequently, the time limit has not been reached. The directive provides some clarifications concerning the notion of putting into circulation, even if it does not define it. The law in its article 1245-10 of the civil code takes care to specify that the producer must have voluntarily given up the product for the benefit of his customers to characterize the putting into circulation. This definition thus excludes any responsibility of the producer in the event of theft for example, but it is advisable to exclude this hypothesis in the present case. The putting into circulation also concerns only the products which are the cause of the damage, according to article 11 of the directive. In this case, only the contaminated products were taken into account and withdrawn from sale. The disputed product therefore fulfils all the conditions for being put into circulation.

B) Characterization of the defectiveness of a toxic food product
In order to apply liability for defective products, it is necessary to characterize the existence of a defect in the product. The defect is the subject of a legal definition, which is found in article 6 of the directive and article 1245-3 of the civil code, which uses the same definition as article 6 of the directive. Article 6 of the Directive provides that "a product is defective when it does not offer the safety that can legitimately be expected, taking into account all the circumstances, and in particular the presentation of the product; the use of the product that can reasonably be expected; and the time when the product was put into circulation". This definition establishes a broad and objective conception of the safety that can be legitimately expected. On the one hand, this definition establishes the possibility of characterizing the intrinsic defect of the product, i.e. that the product does not provide the safety that can be legitimately expected, but it is necessary to take into account the extrinsic defect, i.e. the presentation of the product, the expected use of the product, but also the obligation to inform the buyer. Thus, a failure to inform the purchaser of the use of the product or any other information likely to enable the purchaser to be warned of the risks of the product may be sufficient to engage the liability of the person responsible. This has already been the subject of numerous court cases, such as the case concerning cigarettes decided by the Orleans Court of Appeal on September 10, 2001, which considered that cigarettes were a dangerous product, but not defective, since all the information had been transmitted to the purchaser so that he or she was fully aware of the risks. Similarly, the absence of a notice on a product or an insufficient notice on a product can characterize a liability for a defective product: this was the case in a judgment of the Court of Appeal of Lyon dated April 11, 2019, and dealing with the Monsanto case, where the manufacturing company, having been subject to insufficient labeling not complying with the applicable regulations of its product, did not offer the safety to which the buyer could legitimately expect which constitutes a defect. Applied to the case at hand, the product is not only inherently defective, since we expect an appetizer cake to be non-toxic and to be able to feed us without harming our health, but it is also extrinsically defective, since the product's packaging did not mention any use of this pesticide during the manufacturing of the product.

Thus, a food product containing toxic substances, intended for consumption is a defective product in the sense of the directive. However, it is now necessary to analyze who is liable for defective products. In the agri-food sector, this determination can sometimes be complicated.

II) A complicated characterization of the responsible producer in the food sector.

The 1985 directive considers that producers are liable, but in the food industry, it is sometimes complicated to determine who is the producer of the product in question. This difficulty has allowed the existence of the co-responsibility of the producers to be established, as well as the possible option for the buyer when the producer is unknown (A). Finally, in the present case, the possible grounds for exemption from liability provided for in the Directive should be set aside (B), since they do not apply in this case.

A) The possibility of bringing an action for joint liability of the agricultural producer and the producer of the finished product.

The 1985 directive states in article 3 of the directive and article 1245-5 of the civil code that only producers are liable under the liability for defective products. These producers are necessarily professionals and include producers of finished products, raw materials or producers of a component. Concerning the agricultural producers, the European directive had initially prohibited the possibility of introducing in the full liability of the agricultural products in its article 2 of the direction of 1985. Article 15 of the 1985 directive nevertheless provides for a derogation from article 2 by allowing the Member States to choose to integrate the agricultural producers in the full liability. Thus, the directive does not exclude the agricultural producers from the concept of producer. In France, the legislator decided to consider that the agricultural producers are producers within the meaning of the directive. Thus, the producer of defective sesame seeds can be responsible in the sense of the directive. However, a problem persists. Indeed, in the agri-food sector, it is sometimes difficult to know who the producer is because the identity of the producer is not revealed but also because, in many cases, the producer is foreign. In this case, the directive provides in its article 3 paragraph 3 that if the producer is not identifiable, the victim can ask the salesman, that is to say in this case the company Leclerc, to communicate the identity of the producer of the sesame seeds to him, within a reasonable time of 3 months fixed by the civil code. If the name of the producer is not revealed within the time limit, then Leclerc will be substituted for the producer and the victim will be able to act against Leclerc which will have the new quality of producer. Another possibility is for the victim to bring an action directly against the seller, in his capacity as co-responsible for the damage, with the seller, in this case Leclerc, being responsible for bringing a recourse action against the producer in order to share the responsibility, whereas initially the seller is excluded from liability for defective products.

B) The absence in this case of exonerating causes of liability

With regard to the grounds for exemption from liability, the Directive only admits the grounds for exemption in the absence of a causal link between the defect and the damage, the fault of the victim, and the exemption for the risk of development (we have already dealt with the question of foreclosure, we will set it aside). Concerning the causal link, in this case it is proven since scientific studies have already proved that the pesticide present in sesame seeds in large quantities could cause cancers. The fault of the victim codified in article 8 of the directive and art. 1245-12 and -13 of the civil code is also to be discarded because in the case of the species, there is no fault of the victim because the victims do not have use of the product which was not what one could legitimately expect. Finally, the exoneration for risk of development does not apply in this case either, because this type of exoneration, specific to liability for defective products and provided for in article 7 of the directive, only exonerates the producer if "the state of scientific and technical knowledge at the time the product was put into circulation by him did not allow the existence of the defect to be detected". This definition of exoneration for risk and development has been transposed into domestic law by article 1245-10 of the civil code. This risk of development must be interpreted very restrictively. For there to be exoneration for risk of development, it is necessary that no serious person in the world had knowledge of the risk at the time the product was put into circulation. In this case, the litigious food product is not new, therefore the exemption for development risk does not apply.
Therefore, no exonerating cause of liability can exempt the producer (if the identity is revealed) or the seller (if the identity of the producer remains unknown) from being liable for the damage caused by a defective product.