1450

Tainting a Consumer Product

Subsection (b) of 18 U.S.C. § 1365 makes it an offense to taint a consumer product which affects interstate or foreign commerce, or to render materially false or misleading the labeling of, or the container for, such a product, with intent to cause serious injury to the business of any person (i.e, cause commercial harm to a business). The term "taints" is not defined in the Act but is meant to be broader than "tampers." S.Rep. No. 69 on S. 216, 98th Congress, 1st Sess., at 7 defines "to taint" as meaning "to modify with a trace of something offensive or deleterious, or infect, contaminate, or corrupt. Such an contaminating' result would be the addition of an unsightly or nauseating substance, as well as a dangerous substance." Whether the commerce nexus (i.e, the tainted consumer product "affects" interstate or foreign commerce) is met is a question of fact. United States v. Levine, 41 F.3d 607, 614 (10th Cir. 1994); United States v. Nukida, 8 F.3d 665, 672 (9th Cir. 1993). In Levine, 41 F.3d at 614-15, the Tenth Circuit held that the effect may be established in three ways: (1) . . . the product was in interstate commerce at the time of the tainting . . . (2) . . . the product was not in interstate commerce at the time of the tainting, [but] after the tainting it was returned to interstate commerce; we are persuaded that if a "consumer product" is taken off the shelf, tainted, and then returned to the shelf, it would still be in interstate commerce when the tainting occurred; or (3) . . . there was an actual impact on interstate commerce as a result of the tainting of the product. [cited in USAM 9-63.1100]