Misbranded Food Conviction Overturned
Judge Richard Posner, writing for a Seventh Circuit Court of Appeals panel, has determined that the government failed to prove that the defendant misbranded food by changing the “best when purchased by” date on bottled salad dressing that he then resold. U.S. v. Farinella, Nos. 08-1839, 08-1860 (7th Cir., decided March 12, 2009). A jury convicted the defendant of wire fraud and of introducing into interstate
commerce a misbranded food with intent to defraud or mislead, and he was sentenced to five years of probation, including six months of home confinement, and to pay a $75,000 fine and forfeit his gains in excess of $400,000.
According to the court, the defendant bought 1.6 million bottles of Henri’s Salad Dressing in May 2003, and they were labeled with “best when purchased by” dates ranging from January to June 2003. The defendant resold the dressing in discount stores, but pasted over the date on each bottle with a new “best when purchased by” date of May or July 2004. The government called these “the dates on which ‘the dressing would expire.’” Judge Posner stated, “That is itself false and misleading, and is part of a pattern of improper argumentation in this litigation that does no credit to the Justice Department.”
Contending that “[s]alad dressing . . . or at least the type of salad dressing represented by Henri’s, is what is called ‘shelf stable,’” Judge Posner noted. “It has no expiration date.” He also observed, “There is no suggestion that selling salad dressing after the ‘best when purchased by’ date endangers human health; so far as appears, Henri’s Salad Dressing is edible a decade or more after it is manufactured. There is no evidence that the taste of any of the 1.6 million bottles of Henri’s Salad Dressing sold by the defendant had deteriorated by the time of trial—four years after the latest original ‘best when purchased by’ date.”
The court observed that no federal agency “defines ‘best when purchased by’ or forbids a wholesaler (as here) or retailer to change the date,” and further noted that nothing in the record showed how consumers interpret the phrase. “Without evidence of that understanding, whether the defendant’s redating was misleading cannot be determined.” According to the court, “The government wants us to believe that [the phrase] is a synonym for ‘expires on’ but presented no evidence for this interpretation.” The court directed an acquittal on all counts and declined to address the government’s sentencing issues “beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.”
