[Senate Report 107-106]
[From the U.S. Government Publishing Office]
Calendar No. 152
107th Congress Report
SENATE
1st Session 107-106
======================================================================
THE PRODUCT PACKAGING PROTECTION ACT OF 2001
_______
December 4, 2001.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany S. 1233]
The Committee on the Judiciary, to which was referred the
bill (S. 1233) to provide penalties for certain unauthorized
writing with respect to consumer products, having considered
the same, reports favorably thereon, with an amendment in the
nature of a substitute, and recommends that the bill, as
amended, do pass.
CONTENTS
Page
.................................................................
I. Purpose..........................................................2
.................................................................
II. Legislative history..............................................2
.................................................................
III. Discussion.......................................................3
.................................................................
IV. Vote of the Committee............................................4
.................................................................
V. Section-by-section analysis......................................4
.................................................................
VI. Cost estimate....................................................4
.................................................................
VII. Regulatory impact statement......................................5
.................................................................
VIII.Changes in existing law..........................................6
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Product Packaging Protection Act of
2001''.
SEC. 2. TAMPERING WITH CONSUMER PRODUCTS.
Section 1365 of title 18, United States Code, is amended--
(1) by redesignating subsections (f) and (g) as subsections
(g) and (h), respectively; and
(2) by inserting after subsection (e) the following:
``(f)(1) Whoever, without the consent of the manufacturer,
retailer, or distributor, intentionally tampers with a consumer product
that is sold in interstate or foreign commerce by knowingly placing or
inserting any writing in the consumer product, or in the container for
the consumer product, before the sale of the consumer product to any
consumer shall be fined under this title, imprisoned not more than 3
years, or both.
``(2) In this subsection, the term `writing' means any form of
representation or communication, including handbills, notices, or
advertising, that contain letters, words, or pictorial
representations.''.
I. Purpose
The Product Packaging Protection Act of 2001, S. 1233, will
criminalize the unauthorized insertion of literature in a
consumer product package. Food manufacturers and distributors
report that hate-filled, pornographic, or political leaflets
are being folded and inserted into certain boxed groceries,
like frozen pizza, cereal, and macaroni and cheese packages.
Current Federal product tampering law is inadequate to address
this activity because it only applies to the actual product
contained inside the package but not the physical package
itself. The Product Packaging Protection Act of 2001 extends
the scope of 18 U.S.C. 1365 to acts involving the tampering of
the product package. The penalty for a violation of this
measure would be a fine of up to $250,000 per offense,
imprisonment of up to 3 years, or both. It would not be an
offense if the pamphlet insertion was authorized by the food
manufacturer.
II. Legislative History
Senate bill 1233 was introduced as the Product Packaging
Protection Act of 2001 by Senator Herb Kohl (D-Wisconsin) on
July 24, 2001. Original cosponsors included Senators Hatch (R-
Utah), Leahy (D-Vermont), DeWine (R-Ohio), and Durbin (D-
Illinois). The legislation as introduced would amend 18 U.S.C.
1365 to extend product tampering law to acts involving the
insertion of literature into the actual product package.
On August 1, 2001, the Antitrust, Business Rights, and
Competition Subcommittee of the Senate Judiciary Committee held
a hearing on S. 1233. Witnesses included Alice Fisher, Deputy
Assistant Attorney General, Department of Justice, Criminal
Division; Leslie Sarasin, president, American Frozen Food
Institute; Paul Petrucelli, chief counsel, Kraft North
American, Inc.; and David Burris, a victim of product package
tampering. The testimony received by the panel identified the
inability of current Federal law to address the problem of
product package tampering. By amending current Federal product
tampering law as prescribed by the Product Packaging Protection
Act of 2001, incidents where unauthorized literature is
inserted into boxed food products can be prosecuted.
On September 6, 2001, the full Judiciary Committee met in
executive session to consider S. 1233. The bill in the form of
a substitute was ordered favorably reported to the full Senate
by unanimous consent. The substitute removed the word
``authorized'' from section 2 of the bill in order to address
gray, or parallel, market concerns. The gray market was
concerned that the bill would affect distributors' ability to
repackage and sell consumer products. The Product Packaging
Protection Act is not intended to affect those engaging in the
legal repackaging and selling of consumer products when they
are acting in the due course of business.
III. Discussion
In the past 3 to 4 years, manufacturers of food products
regularly found that grocery stores have received complaints
from consumers about hate-filled, pornographic, or political
literature being found in groceries. It appears that the
literature is being folded and inserted into certain groceries
that are packaged in boxes. Cereal boxes, frozen pizza boxes,
macaroni and cheese boxes are among the more frequently
tampered product packages. Kraft has reported 80 incidents in
the past 4 years. General Mills documents 25 per year, and
Kellog's many more each year. It is likely that many more cases
go unreported by consumers who simply throw away the offending
material and do not report the event.
The incidents involve pamphlets espousing racist, anti-
Semitic, and white supremacist sentiments. Other examples
include extremist anti-abortion literature. Leaflets have been
found that attack African-Americans, praise the Holocaust and
encourage the killing of immigrants. For example, one leaflet
showed an illustration of a man being shot at point blank range
with an automatic weapon and the caption, ``If it ain't white,
waste it !'' Suffice it to say, this literature is vitriolic,
shocking, and hate-filled.
Manufacturers have responded as best they can to these
incidents. They have undertaken internal reviews to ensure that
these leaflets are not getting into the products either at the
manufacturing plant or during distribution. It is not until
products reach the shelves of the grocery store that these
handbills are inserted--too late for the manufacturer or the
distributor to do anything about it.
Unfortunately, when consumers or companies turn to the
authorities for help, they cannot be assisted. According to the
Federal Bureau of Investigations and the Food and Drug
Administration's Office of Criminal Investigation, these
actions are not covered by Federal product tampering statutes.
Those laws only cover the actual product themselves, but not
the packaging. In response to incidents in the respective
States, both New Jersey and California passed laws to
criminalize this behavior. These States should be commended,
but more should be done. Federal law needs to be amended
accordingly.
The Product Packaging Protection Act of 2001 would prohibit
the placement of any writing or other material inside a
consumer product without the permission of the manufacturer,
distributor, or retailer. The criminal act must involve placing
the literature in a product package, not on. So, any number of
reasons that people might have to write on a product package or
attach literature to it will not be criminalized. Further, the
bill does not apply when a manufacturer, retailer, or
distributor consents to the placement of promotional literature
in the product package.
The penalty for violation of this measure would be a fine
of up to $250,000 per offense and/or imprisonment of up to 3
years. Closing this gap in Federal law would appropriately
punish people whose actions violate the integrity of the food
product, compromise consumer's faith in the food they purchase
in the grocery store, and damage the good name and reputation
of the food manufacturer.
This legislation does not offend the first amendment. The
criminal act is the insertion of material into product
packaging without the permission of the manufacturer. The fact
that most of the incidents involve racist or anti-Semitic
literature brought the problem to our attention, but the
criminal act described in the bill has nothing to do with what
is written on the literature inserted into the package.
Many food manufacturers and distributors experience this
type of product tampering. Together, they recognize the need
for this legislation and have signed a letter supporting the
introduction and passage of this bill. The supporters of this
bill include: the American Bakers Association, the American
Frozen Food Institute, Food Distributors International, General
Mills, the Grocery Manufacturers of America, the Independent
Bakers Association, Kellog's, Kraft Foods, the National Food
Processors Association, and the National Frozen Food Institute.
IV. Vote of the Committee
The Product Packaging Act of 2001, S. 1233, passed by
unanimous consent on September 6, 2001.
V. Section-by-Section Analysis
Section 1.--Short Title
The title of the bill is the ``Product Packaging Act of
2001.''
Section 2.--Tampering Consumer Products
Section 2 creates a new subsection (f) of section 1365 of
title 18, United States Code, Previous subsections (f) and (g)
are redesignated as subsections (g) and (h), respectively.
Subsection (f)(1) creates a Federal offense to place
written material into a consumer product package, like a cereal
box. It is not a Federal offense to do so if one has permission
from the manufacturer, retailer, or distributor. The penalty
for a violation of subsection (f)(1) is a fine, imprisonment
not more than 3 years, or both.
Sebsection (f)(2) defines the term ``writing'' as used in
subsection (f)(1). ``Writing'' means any form of representation
or communication. Forms include, but are not limited to,
handbills, notices, or advertisements that contain letter,
words, or pictorial representations.
VI. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 26, 2001.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1233, the Product
Packaging Protection Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker, who can be reached at 226-2860.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office--cost estimate
S. 1233--Product Packaging Protection Act of 2001
CBO estimates that implementing S. 1233 would have no
significant impact on the federal budget. Enacting S. 1233
could affect direct spending and receipts, so pay-as-you-go
procedures would apply to the bill; however, CBO estimates that
any impact on direct spending and receipts would not be
significant. S. 1233 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would have no impact on state, local, or tribal
governments.
S. 1233 would make it a federal crime to intentionally
tamper with a consumer product by placing writing on or inside
the packaging of the product. Violators would be subject to
imprisonment and fines. As a result, the federal government
would be able to pursue cases that it otherwise would not be
able to prosecute. CBO expects that any increase in federal
costs for law enforcement, court proceedings, or prison
operations would not be significant, however, because of the
small number of cases likely to be involved. Any additional
costs to implement the bill would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under the provisions
of S. 1233 could be subject to criminal fines, the federal
government might collect additional fines if the bill is
enacted. Collections of such fines are recorded in the budget
as governmental receipts (revenues), which are deposited in the
Crime Victims Fund and spent in subsequent years. CBO expects
that any additional receipts and direct spending would be
negligible.
The CBO staff contact for this estimate is Lanette J.
Walker, who can be reached at 226-2860. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
VII. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 1233 will not have significant
regulatory impact.
VIII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1233, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman:
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 65--MALICIOUS MISCHIEF
* * * * * * *
Sec. 1365. Tampering with consumer products
(a) Whoever, with reckless disregard for the risk that
another person will be placed in danger of death or bodily
injury and under circumstances manifesting extreme indifference
to such risk, tampers with any consumer product that affects
interstate or foreign commerce, or the labeling of, or
container for, any such product, or attempts to do so, shall--
* * * * * * *
(e) Whoever is a party to a conspiracy of two or more
persons to commit an offense under subsection (a) of this
section, if any of the parties intentionally engages in any
conduct in furtherance of such offense, shall be fined under
this title or imprisoned not more than ten years, or both.
(f)(1) Whoever, without the consent of the manufacturer,
retailer, or distributor, intentionally tampers with a consumer
product that is sold in interstate or foreign commerce by
knowingly placing or inserting any writing in the consumer
product, or in the container for the consumer product, before
the sale of the consumer product to any consumer shall be fined
under this title, imprisoned not more than 3 years, or both.
(2) In this subsection, the term ``writing'' means any form
of representation or communication, including handbills,
notices, or advertising, that contain letters, words, or
pictorial representations.
[(f)] (g) In addition to any other agency which has
authority to investigate violations of this section, the Food
and Drug Administration and the Department of Agriculture,
respectively, have authority to investigate violations of this
section involving a consumer product that is regulated by a
provision of law such Administration or Department, as the case
may be, administers.
[(g)] (h) As used in this section--
(1) the term ``consumer product'' means--
(A) any ``food'', ``drug'', ``device'', or
``cosmetic'', as those terms are respectively
defined in section 201 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321); or
(B) any article, product, or commodity which
is customarily produced or distributed for
consumption by individuals, or use by
individuals for purposes of personal care or in
the performance of services ordinarily rendered
within the household, and which is designed to
be consumed or expended in the course of such
consumption or use;
* * * * * * *