Salad dressing

I would obviously be missing a great story if I neglected to comment on United States v. Farinella. (opinion here), a recent case out of the 7th Circuit Court of Appeals reversing the conviction of a salad dressing dealer. Apparently, Mr. Farinella had been prosecuted for buying leftover salad dressing from a middleman, changing the "best by" date, and then selling the dressing to so-called "dollar stores". The problem for the government was that there is no regulation, no statute, no law, not even an interpretation, a web page, or informal advice from the FDA, to suggest that either establishing or changing a "best by" date was either illegal or required. The 7th Circuit panel, per Judge Posner, was not amused. "Since we are directing an acquittal on all counts", said the court, "the sentencing issues are academic, and we do not address them, beyond expressing our surprise that the government would complain about the leniency of a sentence for a crime it had failed to prove".

I listened to the oral argument this morning. Judge Posner was, if anything, more disparaging of the government's case at argument than in his written opinion. My favorite excerpt (I am transcribing, so this may not be accurate) follows:

Posner: What if this thing came with a label that said "delicious salad dressing. And suppose Farinella covered it over with a label that said "the most delicious salad dressing in history". Is that misbranding?

Government: No, I don't think so.

Posner: Why not? . . . What if in fact you get a bunch of witnesses who say, "most delicious? This is mediocre". "This is not delicious. . . . Did you go out and taste all the salad dressings before you put this label on?"

EDIT: The second interesting issue in this case is that the federal prosecutor was reprimanded for making various improper statements to the jury, including insinuating that there was something physically wrong with the salad dressing (it was shelf stable dressing with no expiration date). Indeed, the prosecutor told that jury that if what the defendant did was "business as usual for the food industry, I suggest we stop going to the store right now and start growing our own food". Posner is obviously right about the various legal issues, and I have nothing to add to them, but I find the prosecutor's cod-locavorism very funny.