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