Forfeited Baby Formula Ruled Unfit for Sale

The Seventh Circuit Court of Appeals has upheld a district court decision refusing to allow the sale of baby formula seized by the government in a civil forfeiture proceeding. U.S. v. Approx. 81,454 Cans of Baby Formula, No. 08-2637 (7th Cir., decided March 25, 2009). Federal agents seized more than 80,000 cans of powdered baby formula in February 2007 on suspicion that they had been stolen from retail stores. According to the court, many of the cans still had retail-store markings or evidence of altered labels, including the products’ “use by” dates. The court distinguished this case from one involving salad dressing, decided earlier in March, that had altered “best when purchased by” dates. Details about that case appear in issue 296 of this Update. Judge Richard Posner authored the opinions in both cases.

A “use by” date on baby formula is mandatory under federal law; selling products after that date involves retesting the formula to demonstrate that it continues to meet nutritional requirements. The defendant in the government’s forfeiture proceedings sought the court’s permission to sell the baby formula because the “use by” dates were approaching or were already past. In asset forfeiture actions, the court may order the sale of all or part of the property sought to be forfeited if it is perishable or at risk of “deterioration, decay, or injury by being detained in custody pending action.” The district court denied the defendant’s motion on the ground that the baby formula might endanger the babies who consumed it.

The appeals court agreed, citing evidence “that one can of baby formula inspected by the government had been found to be mislabeled as to contents, which could endanger babies who have food allergies, and also that that solvents used by the appellant in changing the labels, along with the generally unhygienic condition of the warehouse in which the cans were delabeled and relabeled, created a threat of contamination of the contents.”