1449
Tampering with a Consumer Product
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Subsection (a) of 18 U.S.C. § 1365 prohibits tampering or
attempted
tampering with any consumer product that affects interstate or foreign
commerce,
or with the labeling of, or the container for, such a product. The
tampering
must be done with reckless disregard for the risk that another person will
be
placed in danger of death or bodily injury. Furthermore, the tampering must
be
done under circumstances manifesting extreme indifference to the risk of
death
or bodily injury. The product "affects" interstate or foreign commerce
while it
is being manufactured, being distributed, being held for sale, or รพ if once
removed from the retail process being readied to be put back into the retail
process. The statute is not intended to reach malicious tampering with a
product
once it has been purchased at retail and brought into the home for use.
See S. Rep. No. 69 on S. 216, 98th Congress, 1st Sess., at 9, and
H.R.
Rep. No. 93 on H.R. 2174, 98th Congress, 1st Sess., at 4, reprinted
in
1983 U.S. Code Cong. and Adm. News at 1259. The provision includes
tampering
with the labels of consumer products and falsifying or altering the written
information accompanying the product. United States v. Walton, 36
F.3d
32 (7th Cir. 1994) (altering the "use-before" date on the packing slips and
invoices that accompanied heart pacemakers).
Notwithstanding the above cited legislative history, in determining
whether the consumer product that was tampered with affects commerce, it is
necessary to examine the actual statutory language, which if clear, will not
be
limited by the legislative history. In United States v. Nukida, 8
F.3d
665 (9th Cir. 1993), the Ninth Circuit interpreted the affecting commerce
requirement in an expansive fashion. It noted that the language of section
1365(a) "draws no distinction among effects that occur before, during, or
after
the tampering; it merely states that the product must affect interstate
commerce." Id at 671. Consequently, it held that commerce can be
affected, within the meaning of § 1365(a), by the fact that the
tampering
caused a loss of sales by the victim organization or interstate
investigations
by law enforcement authorities. Accordingly, commerce can be affected by
the
tampering, according to the Nukida court, either because the product
was
"in commerce" at the time of the tampering, or that the tampering had the
effects
described above on interstate or foreign commerce. Id. at 673. The
court
also held that whether the consumer product affected interstate or foreign
commerce was a question of fact, and therefore inappropriate for resolution
on
a pretrial motion to dismiss. Id. at 672.
[cited in USAM 9-63.1100] | |