Food Poisoning at Restaurants in Japan: When Can Government Inaction Lead to State Compensation Liability?

Food poisoning incidents at restaurants, while unfortunate, are a known risk. Typically, legal responsibility falls upon the establishment itself through civil liability claims. However, in Japan, there are circumstances where the government authorities tasked with food safety oversight can also be held liable for damages if their inaction or failure to exercise regulatory powers contributes to the harm suffered by patrons. This liability is primarily grounded in Article 1, Paragraph 1 of the State Redress Act (国家賠償法 – Kokka Baishō Hō), which allows for compensation when public officials, in the exercise of public power, illegally cause damage to a person either intentionally or negligently.

This article explores the conditions under which government inaction concerning restaurant hygiene and food safety can lead to state compensation liability, focusing on the crucial element of establishing the "illegality" of such inaction.

The Regulatory Framework: Japan's Food Sanitation Act and Public Health Oversight

Japan's Food Sanitation Act (食品衛生法 – Shokuhin Eisei Hō) is the cornerstone of food safety regulation. Its stated purpose, in Article 1, is "to prevent the occurrence of sanitation hazards arising from eating and drinking and thereby to protect the health of the people." To achieve this, the Act grants extensive powers to public health authorities, such as prefectural governors and mayors of cities with public health centers. These include:

• Setting Hygiene Standards: Municipalities can establish specific standards for restaurant facilities, cleanliness, and pest control, often through local ordinances, based on Articles 50 and 51 of the Act.
• Inspections and Investigations: Authorities can conduct on-site inspections, demand reports, and collect samples if necessary (Article 28).
• Enforcement Measures: If violations of the Act or hygiene standards are found, authorities can issue improvement orders (Article 56) or, in more severe cases, suspend or revoke business permits (Articles 55, 56).
• Food Poisoning Investigations: Doctors are obligated to report suspected food poisoning cases to the nearest public health center, which must then investigate and report to higher authorities (Article 58).

These powers are not merely discretionary in all circumstances; they are tied to the fundamental duty of protecting public health.

Government Inaction and State Compensation Liability: The Basics

Article 1, Paragraph 1 of the State Redress Act holds the state or public entity liable for damages caused by a public official's illegal exercise of public power, done intentionally or negligently. It is widely accepted in Japanese jurisprudence that a failure to act – specifically, a failure to exercise regulatory authority when legally obligated to do so (an "inaction" or 不作為 – fusakui) – can fall under the "exercise of public power" (kōkenryoku no kōshi – 公権力の行使).

The central and most challenging element in such cases is proving the illegality (違法性 – ihōsei) of the inaction. This is because many empowering statutes, including the Food Sanitation Act, often phrase regulatory powers in permissive terms (e.g., "the governor may order business suspension"). The question then becomes: when does a failure to exercise such a "may" power become an illegal omission for the purposes of state compensation?

Theories and Judicial Standards for "Illegality of Inaction"

Japanese legal theory and case law have developed several approaches to determine when an agency's failure to act becomes illegal.

• Theoretical Underpinnings:
  • Discretion Shrinking to Zero Theory (裁量権収縮論 – sairyōken shūshūkiron): This theory posits that in certain critical situations where the danger to important legal interests (like life or health) is grave and imminent, the scope of an agency's discretion to act or not act effectively shrinks to zero, creating a legal duty to exercise its power in a specific way.
  • Duty to Act Theory (作為義務論 – sakui gimuron): This theory directly asserts a positive legal duty on the part of the administration to act to protect citizens' rights, especially fundamental ones, even if the empowering statute is phrased permissively.
  • Theory of Negative Abuse of Discretion (裁量権消極的濫用論 – sairyōken shōkyokuteki ran'yōron): This theory views the failure to exercise discretion when it clearly should have been exercised as an abuse of that discretionary power, thereby rendering the inaction illegal.
• The Supreme Court's "Markedly Lacking in Rationality" Standard:
  The Supreme Court of Japan has generally avoided laying down a rigid, checklist-style test for the illegality of inaction. Instead, it has often stated that inaction is illegal for state compensation purposes if it is "markedly lacking in rationality" (著しく合理性を欠く – ichijirushiku gōrisei o kaku) when viewed in light of the purpose and objectives of the empowering statute and the nature of the authority granted. This standard was articulated in cases like the Kyoto Real Estate Brokerage Case (Supreme Court, Second Petty Bench, Judgment of November 24, 1989, Minshu Vol. 43, No. 10, p. 1169) and the Chloroquine Drug Harm Case (Supreme Court, Second Petty Bench, Judgment of June 23, 1995, Minshu Vol. 49, No. 6, p. 1600). In these cases, the Court often considered whether the agency had taken alternative measures, such as issuing administrative guidance, when denying liability.
• The "Five Requirements" Analytical Framework:
  While not a definitive Supreme Court test, an influential Tokyo District Court judgment in the SMON (Subacute Myelo-Optic Neuropathy) Litigation (Judgment of August 3, 1978, Hanrei Jihō No. 899, p. 48) outlined five factors often considered in analyzing the illegality of inaction:
  1. Existence of Danger (危険の存在 – kiken no sonzai): A demonstrable risk of harm to important legal interests like life, body, or health.
  2. Foreseeability (予見可能性 – yoken kanōsei): The agency knew, or should reasonably have known, of the imminent danger.
  3. Avoidability of Harm (結果回避可能性 – kekka kaihi kanōsei): The agency could have prevented or mitigated the harm by exercising its regulatory authority.
  4. Necessity/Subsidiarity (補充性 – hojūsei): The harm could not have been prevented without the agency's exercise of authority (i.e., the victim could not reasonably avoid the harm themselves).
  5. Expectation of Action (期待可能性 – kitai kanōsei): It was socially acceptable for the victim to expect the agency to exercise its authority.
     The precise weight and applicability of these factors, particularly subsidiarity and expectation, have been debated, and recent Supreme Court rulings in major health crisis cases have sometimes affirmed state liability without explicitly addressing all these points, especially subsidiarity when fundamental rights like life and health are at stake.

Applying the Principles to a Hypothetical Food Poisoning Scenario

Let's consider a scenario based on "Problem 7" from the PDF's source material:

A customer (F) suffers food poisoning after eating at Restaurant P. A doctor reports this to the local public health center. An investigation by Health Inspector B reveals that while the specific pathogen causing F's illness couldn't be identified and a direct causal link to P's food wasn't definitively established for F, Restaurant P had significant hygiene deficiencies in its kitchen and storage facilities, violating standards under Articles 50 and 51 of the Food Sanitation Act. Restaurant P had no prior record of food poisoning incidents, and its owner promised Inspector B to make immediate improvements. Based on this, Health Center Chief C decided only to issue "administrative guidance" (行政指導 – gyōsei shidō) to P, instructing it to improve conditions before reopening, and did not take formal action like a business suspension. However, P ignored this guidance, reopened without making improvements, and a month later, new customers (X and their child G, who tragically died) suffered severe food poisoning directly attributable to P's uncorrected facility and equipment defects. X now considers suing the prefecture (A Prefecture) for state compensation due to the health authority's failure to take adequate regulatory action against P.

Building the Case for State Liability (Plaintiff X's Argument)

X would need to argue that Chief C's (and by extension, A Prefecture's) inaction was illegal under Article 1, Paragraph 1 of the State Redress Act.

1. Duty of Care Derived from the Food Sanitation Act: The primary purpose of the Food Sanitation Act is to protect public health (Article 1). The powers granted under Articles 55 and 56 (business suspension, improvement orders) are precisely for fulfilling this purpose when violations threatening health are found. The duty to investigate food poisoning reports (Article 58) further underscores this responsibility. Thus, there was a clear duty to act appropriately to mitigate known risks.
2. Existence of Danger and Foreseeability: The initial investigation explicitly found violations of hygiene standards at Restaurant P. Even if F's specific illness wasn't conclusively linked to P, these known defects in facilities and equipment created a clear and present danger of future food poisoning incidents if the restaurant continued to operate without correction. It was highly foreseeable that reopening without addressing these serious violations would lead to further harm to unsuspecting patrons.
3. Avoidability of Harm: Had Chief C issued a formal improvement order with a compliance deadline, or a temporary business suspension order under Articles 55 or 56 until the violations were rectified and verified, the second, severe food poisoning incident involving X and G could have been prevented. These powers existed precisely for such situations.
4. Inadequacy of Administrative Guidance and Marked Lack of Rationality:
   • Relying solely on administrative guidance and the owner's unverified promise to improve, in the face of known significant hygiene violations directly impacting food safety, was arguably a "markedly irrational" response. Administrative guidance is non-binding, and P indeed ignored it.
   • The failure to follow up on the guidance, to verify if improvements were made before P reopened, or to escalate to formal enforcement measures when P disregarded the guidance and continued to operate with known deficiencies, demonstrates a culpable failure in regulatory oversight.
   • Given the direct threat to public health, especially after one potential incident had already occurred, a more robust regulatory response was warranted. The decision to rely on mere guidance lacked the necessary coercive power to ensure compliance and protect the public.
5. Causation: The health authority's failure to take effective regulatory action (e.g., a suspension order or a rigorously enforced improvement order) allowed Restaurant P to continue operating with known hazardous conditions. This inaction directly led to the conditions that caused the severe food poisoning suffered by X and G.
6. Subsidiarity (Victims' Inability to Avoid Harm): X and G, as unsuspecting customers, had no way of knowing about the prior incident (which wasn't even definitively linked to P at the time from F's perspective) or the internal hygiene problems at Restaurant P. They relied on the regulatory system to ensure the safety of establishments open to the public. As noted, recent Supreme Court trends in life/health cases suggest this element might not be a strict barrier.

Potential Defenses by the Government Authority

A Prefecture might argue:

• The cause of F's initial illness was not definitively traced to P.
• P's owner had no prior history of violations and promised to make corrections.
• Administrative guidance was issued, representing an exercise of judgment.
• The choice of enforcement measure (guidance vs. formal order) falls within administrative discretion.

Rebutting the Defenses

X would counter that:

• While F's illness wasn't conclusively linked, the independently verified hygiene violations at P were a clear basis for action, regardless of F's specific case. These violations themselves posed a risk.
• Relying on an unverified promise from a violator, especially when public health is at stake, is insufficient. The purpose of formal orders is to ensure compliance when voluntary action is uncertain or absent.
• Administrative guidance proved ineffective as P ignored it. The critical failure was the lack of follow-up and the failure to escalate to binding measures when the risk persisted and the guidance was flouted. This is where the inaction became "markedly lacking in rationality."

The Impact of Recent Supreme Court Precedents

Landmark Supreme Court decisions such as the Chikuho Jinpai (Pneumoconiosis) Case (Sup. Ct., Judgment of April 27, 2004, Minshu Vol. 58, No. 4, p. 1032), the Kumamoto Minamata Disease Kansai Litigation (Sup. Ct., Judgment of October 15, 2004, Minshu Vol. 58, No. 7, p. 1802), and the Sennan Asbestos Case (Sup. Ct., Judgment of October 9, 2014, Minshu Vol. 68, No. 8, p. 799) have affirmed state liability for inaction in contexts of severe, widespread health damage resulting from failures in regulatory oversight. These cases suggest an increasing judicial willingness to scrutinize agency discretion more strictly when fundamental rights like life and health are jeopardized by a demonstrable failure to act in the face of known and foreseeable dangers. While each case turns on its specific facts and statutory context, these precedents provide a supportive backdrop for plaintiffs arguing state liability for regulatory inaction in serious public health matters like food safety.

Implications for Businesses

• For Food Establishments: This area of law underscores the critical importance of unwavering adherence to food sanitation standards. Regulatory oversight can be stringent, and any identified lapse can lead to significant consequences, not just for the business itself but potentially for the supervising authorities if they fail to act decisively. Responding promptly and effectively to any administrative guidance or inspection findings is crucial.
• For Those Potentially Harmed (and their advisors): Understanding the conditions under which government inaction can give rise to state compensation liability is important. While the primary claim will be against the direct tortfeasor (the restaurant), the possibility of state liability exists if regulatory authorities demonstrably and unreasonably failed in their duty to protect public health from known and avoidable risks.

Conclusion

While restaurants bear the primary responsibility for the safety of the food they serve, Japanese law recognizes that public health authorities also have a crucial duty to oversee and enforce food sanitation standards. When these authorities fail to take reasonably necessary regulatory action in the face of known dangers, and this inaction leads to harm, the State Redress Act provides a basis for holding the government accountable. Establishing the "illegality" of such inaction requires a careful examination of the specific facts, the relevant statutory framework like the Food Sanitation Act, and the evolving standards of judicial review concerning administrative discretion and the duty to protect public health.