Judge Richard Posner blasted a federal prosecutor in an appellate opinion for her repeated “false and misleading” characterization of salad dressing “best when purchased date” as the expiration date, the ABAJournal.com reports. Open criticism of a prosecutor by a judge is rare. Such criticism of a U.S. Department of Justice Attorney is exceedingly rare. Therefore, Judge Posner’s candor is surprising.
The defendant in the case had bought 1.6 million of bottles of Henri's salad dressing and attached new labels that extended "best when purchased by" dates. He was convicted of violating food-labeling laws and wire fraud and was sentenced to five years' probation. However, at trial the prosecutor repeated characterized the “best when purchase date” as an expiration date. The prosecutor also represented the salad dressing as “foul, rancid food,” when the acidic salad dressing apparently had no expiration date and was shelf stable.
The appellate review involved mostly what was not in the record. Posner noted, “the omissions are more interesting than the scanty contents of the government’s threadbare case.” The prosecutor produced no evidence of a health concern, not a single consumer complaint about the taste, and no evidence of product deterioration.
Judge Posner also criticized the testimony of the Food and Drug Administration (FDA) expert witness, as "not just improper and inadmissible but incoherent." The FDA expert apparently testified as to unpublished agency interpretation or guideline. Posner said, “It is a denial of due process of law to convict a person of a crime because he violated some bureaucrat’s secret understanding of the law. ‘The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.’” (Quoting Torres v. INS, 144 F.3d 472, 474 (7th Cir. 1998).
“Misbranded” food under the Federal Food, Drug, and Cosmetic Act (FD&C Act) is an expansive definition. In fact, the definition is so breathtakingly broad I have to work hard to find limitations to talk about in my food law class. However, the FD&C Act definition of misbranded is silent on dates, and unlike some states, FDA has no regulations on “best by” dates. FDA has given me something new to add to my curriculum, United States v. Charles Farinella.
To read more:
Ameet Sachdev, Posner tosses out salad-dressing verdict with unusually stern words for prosecutor, ChicagoTribune.com (Mar. 16, 2009).