ing production. Recalled and detained meat and poultry then require storage, and the company may be forced to freeze some of the product, which it will then have to sell at a lower price. The company will face additional expenses for product testing which involves sample collection, transport to a laboratory, and some product destruction. Additional security and quality control personnel may have to be brought in. Finally, the episode tends to reflect badly on the firm's image through no fault of its own. This can mean a temporary or permanent loss of sales. The government incurs additional costs when recalls must be monitored, product detained and tested (in private laboratories if government ones are not available), and the public informed of the risk involved. Many public agencies such as Federal, state and local law enforcement organizations, as well as private entities, must expend resources to investigate these incidents. Consumers may be injured, or even die as a result of food product tampering. At the least they must return suspect product and replace it. Incidents of tampering with the nation's food supply and false claims of tampering are costly. We all pay a high price when these incidents erode the tremendous public confidence in our food supply that has taken 75 years of cooperation between industry and government to build. The government needs the clout, directly or indirectly, to deal toughly with those responsible. The current law is inadequate in this respect. Sincerely, L. L. GAST, Donald L. Houston (for Administrator). Hon. WILLIAM J. HUGHES, NATIONAL FOOD PROCESSORS ASSOCIATION, Chairman, Subcommittee on Crime, Committee of the Judiciary, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: The National Food Processors Association (NFPA) is a technical and scientifically based trade association representing about 600 companies that pack processed-prepared fruits, vegetables, dehydrated, pickled, and other preserved food items. NFPA and its member companies earnestly strive to earn consumer confidence in safe and wholesome packaged food. We share your concern about criminal acts that could undermine that confidence. Accordingly, NFPA applauds your leadership in introducing the "Federal AntiTampering Act", H.R. 1337, and promptly scheduling the 2 March hearing. As you pointed out at the hearings, careful consideration must be given to any legislation before it becomes law. In that spirit, we transmit herewith our comments on H.R. 1337 and related measures and ask that they be made a part of the official hearing record. Sincerely, Enclosure. RICHARD W. MURPHY, PREPARED STATEMENT OF THE NATIONAL FOOD PROCESSORS ASSOCIATION ON H.R. 1337 AND OTHER FEDERAL ANTITAMPERING BILLS The National Food Processors Association (NFPA) appreciates this opportunity to submit a statement in support of the enactment of a federal anti-tampering act. NFPA is a scientifically and technically based trade association that represents about 600 member companies that pack processed-prepared fruits, vegetables, meats, fish and specialty products, including canned, frozen, dehydrated, pickled and other preserved food items. The Association has represented its food processing member companies on a broad range of food regulatory matters since its founding as the National Canners Association in 1907. This 75-year commitment to wholesomeness, sanitation and safety has given rise to research programs, recommended industry practices, voluntary industry programs, and support for legislation and regulations designed to assure the safety and integrity of processed foods. The cornerstones of these activities have been the research and technical work of NFPA's three laboratories, the expertise of the scientific staff of the Association, and the commitment of more than 600 member companies to the production of a safe and wholesome food supply. THE NEED FOR FEDERAL ANTITAMPERING LEGISLATION NFPA is in full agreement with the sponsors of H.R. 1337, H.R. 1544 and H.R. 778 as to the need for prompt enactment of effective federal anti-tampering legislation. Although at first look tampering with a consumer product in a retail store may appear to be an isolated occurrence of purely local concern, the fact is that the problems created are frequently national in scope and call for an effective national response. Experience within the last 6 months has demonstrated that an incident involving the single act of an individual in tampering with a food or other consumer product can be expected to receive statewide and even national attention from the print and electronic media. An extremely unfortunate effect of this widespread and dramatic coverage is that venal or unbalanced individuals may be encouraged to make their own attempts at achieving national notoriety, at public expense. In short, an isolated tampering incident in a small town may be no more purely local in nature than the belated discovery of a single case of smallpox at a U.S. port of entry. The potential spread of the danger may have truly national consequences calling for national solutions. A second important basis for federal action in this area is that virtually all packaged foods and other consumer products move across the country in interstate commerce. Tampering incidents threaten disruption of that commerce, undermine the confidence of consumers throughout the nation in what they buy, add substantially to the cost of those products, and restrict their availability to consumers. These effects on the stream of interstate commerce have unfortunately been demonstrated a number of times in recent months. This is precisely the type of interstate commerce issue to which Congress has responded in the past by enacting federal legislation to deal with national problems. A third basis for enactment of a federal antitampering law is that the discovery of a poisoned or otherwise dangerously defective consumer product is not typically accompanied by an immediate determination of the cause. A prompt and thorough investigation must be undertaken which focuses on all feasible sources of the contamination, such as accidental adulteration of the product in its manufacture, employee sabotage at the time of manufacture, mishandling of the product in transit, or tampering with the product while it is held for retail sale. Federal authorities should be in a position immediately to undertake a thorough investigation of all possible sources of the defect, and then to follow through with appropriate enforcement action once the investigation isolates the likely cause. It is unduly wasteful for federal officials to have to turn over an investigation to local authorities once it is established that the cause of the contamination may have been purely local in nature. Finally, it should be emphasized that the Federal Food, Drug and Cosmetic Act (FD&C Act) currently has only limited application to tampering incidents, and falls far short of the statutory authority that is needed to deal with the problems that have arisen in recent months. One fundamental limitation of that Act is of course that it does not encompass all consumer products. There is a broad range of consumer products susceptible to tampering which are not subject to regulation under that Act. An even more serious limitation of the FD&C Act in this regard is that its penalties are not really addressed to deliberate acts which are committed with the intent to cause harm. Clearly a separate federal criminal law is needed that is addressed specifically to such acts and that supplements state laws in deterring the venal or irrational tampering incidents on which so much national attention has focused during the last half year. BASIC PRINCIPLES OF FEDERAL ANTITAMPERING LEGISLATION Before addressing the specific provisions of the various proposals pending before the House, we would like to suggest what we regard to be the basic principles that should guide Congress. First, a federal anti-tampering bill should effectively deal with the types of incidents that have occurred and are likely to occur. The bill should be drafted in such a way as to serve as an effective deterrent to those who may be tempted to tamper with consumer products. It should have no obvious loopholes or gaps which might be spotted by a clever mind and exploited in such a fashion as to avoid federal investigation and prosecution. Inadequate coverage of the bill might have the effect of not reducing tampering incidents at all, but merely of shifting the incidents to products or circumstances that are not covered by the bill. Second, a federal anti-tampering bill should not deliberately overreach by attempting to deal with truly local incidents that are more effectively handled under state and local law. The temptation should be avoided to draft the bill in such broad terms that it injects the federal government into local criminal matters that have little or no relationship to the issues raised by the tampering incidents which gave rise to the need for legislation. Third, the bill should be carefully drafted so as to avoid any constitutional or practical difficulties that might result from unintended overreaching, uncertainty of scope and application, and undue ambiguity. Care should be taken so that the bill does not arguably apply to innocent or innocuous behavior. Finally, the bill should, wherever possible, employ terms with understood and accepted meanings derived from other statutes or case law. The employment of new terms and new concepts may well have a place in some areas of federal legislation, but they are entirely inappropriate for use in a law which must be clear, readily understood, and not subject to serious constitutional challenge. THE SPECIFIC PROVISIONS OF A FEDERAL ANTITAMPERING LAW Intent To Injure or Kill.—H.R. 1544 would make it a federal crime for a person to tamper with or adulterate a consumer product with intent to injure or kill an individual. H.R. 1337 would make the causing of death or injury a necessary element of the crime, but would perhaps achieve the same effect as H.R. 1544 by also making unlawful "attempts to do so." Because of the ambiguity of this reference, and the complexities and uncertainties which inhere in the law of criminal attempts, we believe that the approach of H.R. 1544 in this regard is far preferable. The definition of the basic offense in H.R. 1544 in terms of intent has two extremely important corollaries: actual injury is not an element of the crime, and careless or inadvertent acts are not covered. An anti-tampering bill which applied only to incidents in which the intended injury actually occurred would perhaps be of some limited usefulness, but it would fall far short of addressing the full range of incidents which have created so much concern in recent months. A defendant whose deliberate act of tampering has endangered and terrorized an entire community or incited others to engage in copycat crimes should not be permitted to avoid conviction on the ground that the intentionally poisoned food or defective product was discovered before it was consumed. Whether injury actually results from tampering may appropriately be taken into account in the consideration of the penalties to be imposed, but should not be relevant in determining whether a crime has occurred. There are a number of federal and state statutes which proscribe certain dangerous acts regardless of whether they actually produce the intended harm. Perhaps the most relevant and earliest examples of such statutes are the laws adopted in a number of states in the late nineteenth and early twentieth centuries which made it a crime to mingle poison with any food, drink or medicine, with intent to injure. Typical of these is section 347 of the California Penal Code, which provides: "Every person who willfully mingles any harmful substance with any food, drink, or medicine, with intent that the same shall be taken by any human being to his injury, and every person who willfully poisons any spring, well, or reservoir of water, is punishable by imprisonment in the State prison for two, three or four years. Similar prohibitions were enacted in a number of states, including Texas, Massachusetts, Michigan, and Oklahoma. These laws were frequently likened to, but distinguished from, attempted homicide. The cases interpreting these laws typically involved situations in which the defendant intended to injure or kill an individual, but in none of them was a violation deemed to be dependent upon the actual occurrence of the intended injury.1 There are a number of federal statutes which make commission of a particular act with the requisite intent a crime, whether or not the intended injury actually results. One of these is 18 U.S.C. § 1716, which makes it a felony for a person willfully to mail a package with the specific intent of killing or injuring another or 1 Cases involving the application of these state poisoning laws include Commonwealth v. Kennedy, 48 N.E. 770, 170 Mass. 18 (1897) (one count for mingling poison with food with intent to kill, and a second count for attempted murder by poisoning); Runnels v. State, 77 S.W. 458, 45 Tex. Cr. R. 446 (1903) (defendant charged with mingling strychnine in a tub of simple syrup with intent to kill or injure persons unknown); State v. Clark, 52 So. 691, 97 Miss. 806 (1910) (the crime consisted of mingling of poison with food, and it need not be proved that the person for whom it was intended was about to or intended to eat the food); Harkey v. State, 234 S.W. 221, 90 Tex. Cr. R. 212 (1921) (violation consisted of mingling of strychnine with coffee grounds, although the poison was discovered before the coffee was consumed); People v. Mitchell, 298 N.W. 495, 298 Mich. 172 (1941); Minter v. State, 129 P.2d 210 (Okla. 1942); People v. Mattison, 481 P.2d 193, 93 Cal. Rptr. 185 (1971). damaging the mails or property.2 Under other federal laws it is a felony to tamper with or place an explosive in a motor vehicle engaged in interstate commerce with intent to endanger the safety of persons on board,3 to place an explosive substance in an airplane with intent to damage or destroy it, and to place explosives on any vessel of the United States with intent to endanger the safety of the vessel, her cargo, or persons on board.5 These federal statutes and the proposed antitampering act has several significant characteristics in common. In each, the nature of the act in question is such that: the safety of one or more persons is seriously threatened; the potential victims are particularly vulnerable and usually incapable of protecting themselves against the hidden cause; the person committing the act is or may be far from the scene when the intended injury is likely to occur; prevention of the crime and detection of the responsible person are usually difficult, particularly since some or all of the victims may have no relation to the person committing the act; if the intended harm does not actually occur it is only because of fortuitous circumstances beyond the control of the perpetrator. For these reasons, Congress has chosen to define each of these federal crimes in terms of intent to inflict harm together with a deliberate, overt act which in fact threatens harm. Actual occurrence of the harm is not, and should not be, an element of the crime. A second corollary of defining the crime in terms of intent is that the statute will not be applicable to innocent, inadvertent, or negligent acts, or to activities of manufacturers, processors, handlers and retailers which are cognizable under the Federal Food, Drug and Cosmetic Act. In order to prove a violation the prosecution will have to demonstrate that the defendant had the intent to injure or kill. The requisite intent may be proved in a number of ways, including by circumstantial evidence. In a typical tampering occurrence where a poison is deliberately added to a food product, the jury would have a basis for finding the necessary intent if it concluded that the defendant knew or had reason to know that the normal and usual consequences of his deliberate act of tampering would be to cause such injury or death. On the other hand, a purely accidental occurrence in the manufacturing plant, in transit, or in the store would not be covered, nor would such relatively innocent acts of handling produce, opening an unsealed container to inspect the product, or accidentally mishandling a product in the store. Intent To Damage the Business or Reputation of a Business Entity.-H.R. 1544 would apply to tampering with intent to cause damage or injury to the business reputation of a business entity. H.R. 1337 does not include such a provision; it applies only if the prosecution has proved that the defendant intended to cause death or bodily injury. In our view it is absolutely essential that injury to business be included. A person in a retail store, or a disgruntled employee, might tamper with a food in such a way as to make it obviously unfit for use, or in such way as to assure discovery of the defect prior to use. Or a person might add a poison to a food and then take steps, or claim to have taken steps, to warn against its use. Such actions could result in the costly destruction of large volumes of valuable consumer product, undermine consumers' confidence in a particular product or retail outlet, or encourage tampering by others. For these reasons, the statute should apply to tampering which may be expected to damage business or business reputation even though the defendant might be able to demonstrate that injury to persons was not intended or could not be expected to result. The federal statutes prohibiting tampering with vehicles, vessels and airplanes apply if there is a showing of intent to damage the vehicles, whether or not an intent to injure passengers is demonstrated. Similarly, federal law prohibits the 2 In United States v. Wisdom, 534 F.2d 1306 (8th Cir. 1976), the court upheld a conviction under this provision against the defendant's contention that the bomb which he had mailed was only a hoax bomb which did not and could not have injured the person to whom it was mailed. 3 18 U.S.C. § 33. 4 18 U.S.C. § 32. 518 U.S.C. § 2275. 6 There are countless cases that support the statement in the text. An early and notorious example is People v. Molineux, 168 N.Ÿ. 264, 61 N.E. 286, 296 (1901), in which the defendant was charged with murder in the first degree for sending in the mail a gift bottle with a Bromo Seltzer label and containing Bromo Seltzer and cyanide of mercury, which was taken and resulted in the death of a person in the house to which the package had been sent. On the question of intent the court commented: "Could such a foul and cunningly devised act have been innocently done? . . . If intent may not be inferred from such an act as this, then there is no such thing as inference of intent from the character of the act." mailing of explosives with intent of killing or injuring another person, or of damaging the mails or property (18 U.S.C. § 1716(a)). A federal anti-tampering law should not, in our view, stop short of prohibiting the various kinds of tampering that have been shown in recent months to inflict deliberate economic harm on those who produce and sell consumer products. "Tampering."-Both H.R. 1337 and H.R. 1544 apply to a person who "tampers with" a consumer product, but do not define that term. In our view no statutory definition is needed. The word "tamper" is used in other federal and state statutes, and courts have upheld such statutes against charges that they were unconstitutionally vague, holding that tamper "is a word of common usage and general understanding," and typically relying upon such dictionary definitions as that in Black's Fourth Edition, which defines it as "meddling so as to alter a thing, especially to make corrupting or perverting changes." " H.R. 1544 would make unlawful the doing of any act which results in a food, drug, device of cosmetic being adulterated with the requisite intent to injure. It uses the term "tamper" only with respect to hazardous substances and other consumer products. We believe that the concept of tampering should also be used for foods, drugs, devices and cosmetics, so as to assure the application of the act only to the type of activity which is intended to be covered. The inclusion of the concept of tampering will assure that the act would apply to deliberate "meddling so as to alter a thing,' and not to innocent, innocuous or unintended acts. In addition, it seems desirable to require that there actually be a harmful change in the product, and accordingly to provide that the tampering must thereby result in the adulteration of the food, drug, device or cosmetic. The concept of adulteration is well defined in the FD&C Act and should be incorporated by reference. The concept of adulteration has no applicability to consumer products which are not regulated under the FD&C Act, and it is thus not appropriate to refer to the adulteration of such other products. Accordingly, the bill should be drafted to apply to one who tampers with and thereby significantly alters any other consumer product. As indicated in the definition from Black's quoted above, the concept of alteration is generally included within tampering, but it seems advisable to assure that the statute should be applied only to acts which result in some change in the product in question. Attempts.-H.R. 1544 applies to "attempts to tamper" as well as to actual tampering. H.R. 1337 applies to attempts, but does so in such a way as potentially to create a substantial amount of confusion as to what would constitute an attempt under the bill. On balance, we believe it is advisable not to make the federal law applicable to attempts to tamper. As we have suggested above, an anti-tampering criminal prohibition should not require that the intended harmful result actually occur-commission of the act of tampering together with the requisite intent should constitute the crime. The basic offense is thus in the nature of an attempt, and it seems inappropriate and perhaps unnecessary to make unlawful an attempt to tamper, particularly since the law of criminal attempts is one of the most confused and uncertain areas of criminal law.9 Conceivably a customer's innocent handling of a product in the supermarket or merely opening an unsealed container might be misconstrued as an attempt to 7 Some of the cases which have interpreted and applied criminal statutes involving tampering include Missouri v. Ridinger, 266 S.W. 2d 626 (1954); State v. Hauston, 565 S.W. 2d 773 (1978); People v. Anderson, 543 P. 2d 603 (Cal. 1975); People v. Exxon, 354 N.E. 2d 581 (Ill. 1976) (stating that no cases had been found holding tampering statutes to be unconstitutionally vague); In re R.F.H., 354 A. 2d 844 (D.C. App. 1976) (citing Black's); Giugni v. United States, 127 F. 2d 786 (1st Cir. 1942) (holding constitutional the federal statute prohibiting tampering with vessels.) H.R. 1337 provides in relevant part that whoever, with intent to cause death or injury, knowingly tampers with a consumer product "and thereby causes the death of or bodily injury to any individual, or attempts to do so, shall be punished" as provided in subsection (b) of the bill. This bill thus defines the basic crime as including the act of tampering, the requisite intent, and the occurrence of death or bodily injury. It is not clear how the "attempts to do so" language is meant to apply or would be interpreted by the courts. The cases dealing with the law of criminal attempts yield varying results within and among different jurisdictions. It is thus impossible to predict what acts and events would have to be proved before a person could be convicted of attempted tampering under this bill. The court's opinion in United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974), contains an excellent discussion of many of the authorities and cases addressing the question of what constitutes a criminal attempt. The opinion notes that “[t]he courts in many jurisdictions have tried to elaborate on the distinction between mere preparation and attempt," and in a footnote refers to six different formulations which have been adopted or suggested as a basis for determining whether a criminal attempt has occurred. 499 F.2d at 373 n.5. |