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1449

Tampering with a Consumer Product

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 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]