A Posner opinion can be expected to entertain; if you’d rather read the whole thing, here it is. Farinella was convicted of wire fraud and introducing a misbranded food into interstate commerce with intent to defraud or mislead.
In May 2003, Farinella bought 1.6 million bottles of Henri’s Salad Dressing. The manufacturer-provided labels said “best when purchased by,” followed by dates from January to June 2003. In order to sell the dressing to dollar stores, Farinella pasted over the “best when” label with new labels using May or July 2004. Judge Posner called the government’s use of the term “expiration date” “false and misleading” in itself. In opening argument, the prosecutor said, “it’s a case about taking nearly two million bottles of old, expired salad dressing and relabeling it with new expiration dates to pass it off as new and fresh.... [N]obody wants to eat foul, rancid food.” Posner distinguished an expiration date—“the date after which you shouldn’t eat the product”—from “best when purchased by.” The salad dressing here is shelf-stable, and has no expiration date, or at least none of interest to anyone but the cockroaches who will survive the human race.
The reseller received some complaints about the relabeling, though none about taste or other qualities, and complained to Farinella, who said that he’d checked with the FDA and that the relabeling was okay. He was lying about checking with the FDA, and about some other things. But there was no threat to human health, or even evidence that the salad dressing deteriorated, even by the time of trial.
The FDCA defines “misbranded food,” but not specifically with respect to label dates. Farinella’s acts were criminal only if the label was “false or misleading in any particular.” There’s no FDA or FTC regulation of “best when purchased by” or of people who change the “best when purchased by” label. There was evidence at trial that Unilever picked its “best when purchased by” date based on tests, but no evidence of what was tested—Posner suggested it might have been taste.
Moreover, there was nothing in the record about what consumers think “best when purchased by” means. Without direct or survey testimony, there was no way to determine whether the redating was misleading. There was no evidence that the term has a uniform meaning in the food industry. The government contended that it was a synonym for “expires on,” but presented no evidence of this, and simply argued it to the jury as if the terms were synonyms.
There was no specific regulation covering this issue. “As far as the evidence shows, any firm in the chain of production and distribution that leads from the manufacturer to the ultimate consumer can make its own judgment of when the taste of the product is likely to deteriorate. For all we know, the date is determined less by a judgment about taste than about concern with turnover.” This was my thought—the “best” date might be one that leads to a certain amount of tossing out old but still usable product, though Posner then proceeded with standard invisible-hand reasoning to show that the producer would have some countervailing incentives as well. Posner also speculated that “best” dates allowed for price discrimination: wealthy consumers can buy before that date, and poor ones can buy after at a discount. But then is Farinella avoiding that price discrimination by deceiving consumers, who by hypothesis do consider the date material? No, because he sold in dollar stores, to price-conscious consumers who were willing to take the risk of lower quality. (But then why did he do it? Maybe price isn’t the only thing those consumers are looking for; maybe they’d rather not have to think of themselves as buying out-of-date food for their families.) Or maybe, Posner continued, the “best” date is a time-limited warranty, and if the product isn’t “best” through that date consumers are entitled to a refund.
Of course this is all speculation, but Posner thought his speculations were “less implausible” than the government’s assumption that “best by” meant “expires on,” so that consumers “would not dream of buying the product no matter how steeply it was discounted” once the date had passed. That’s a pretty extreme requirement for consumers; does the existence of freegans who score food out of dumpsters mean that “expires on” is equally irrelevant?
Posner further found that the admission of an FDA employee’s testimony was improper. The employee testified that the FDA has a database of inquiries regarding the relabeling of food products, that he had looked in the database, that he had found no record of an inquiry from Farinella about relabeling salad dressing, and that the FDA requires supporting data before approving a request to change the date. But there’s no requirement of FDA approval—there’s no statute, regulation, written guideline or opinion setting forth this requirement. One employee’s opinion is insufficient to satisfy due process. And of course witnesses can’t testify about the substance of domestic law, either. Even worse, the testimony here was “not just improper and inadmissible but incoherent”—he didn’t know what the FDA says about “best by” dates, he didn’t know what “best when purchased by” meant, and he contradicted himself on whether the FDA had authority to regulate expiration dates.
Bottom line: In order to prove fraudulent misrepresentation, “ a jury must be given evidence about the meaning (unless obvious) of the representation claimed to be fraudulent.” (Ah, obviousness. So useful, and yet so tricky in practice.) Farinella was entitled to an acquittal based on insufficient evidence.
Then—and this is why there’s probably more interest in this opinion than in even the average Posner opinion—Posner went on to consider why Farinella had been convicted despite the paucity of evidence. He blamed a series of improper statements by the prosecutor in closing argument. First, she attacked Farinella’s exercise of his right to counsel, saying that he was trying to buy his way out of his crime.
Second, she linked the “best when purchased by” date to health and safety, for example telling the jury that the date “allows a manufacturer to trace the product if there is a consumer complaint, if there is illness, if there is a need to recall the product.” But there was no evidence this was true, either in general or in particular. She repeatedly raised the specter of unsafe food: “in spite of all this talk about the quality of the dressing, I don't see them opening any of these bottles and taking a whiff”; the defendant was indifferent to “safety”; “the harm caused by the fraud was to public confidence in the safety of the food supply”; the defendant sold “truckfulls of nasty, expired salad dressing.” These and other statements led Posner to warn that the conviction would have been reversed for prosecutorial misconduct had there not been insufficient evidence.
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