Here's a case that will turn your stomach.
What would you say if we told you that the New York State of Court of Appeals refused to penalize merchants who sold "expired" foodstuffs and other aged items to unsuspecting members of the public?
Well, we didn't want to believe it either. But, sure enough, there's actually a decision from our state's highest court, refusing to characterize the sale of outdated merchandise as a "deceptive or misleading" business practice.
In Matter of Food Parade, Inc. v. Office of Consumer Affairs of County of Nassau, Food Parade doing business as Greenfield Shoprite (Shoprite) was fined $3,600 by the Nassau County Department of Consumer Affairs for offering to sell some 144 expired products (which included vitamins, baby formula, nasal decongestant, and tanning oil). Shoprite appealed the agency's decision claiming no wrongful act had been committed--since the items were "plainly marked as outdated." The Nassau County Supreme Court agreed and canceled the agency's fine. Incredibly, both the Appellate Division, Second Department, and the New York State Court of Appeals affirmed that outcome.
The appellate courts were of the opinion that the merchant's conduct was not a "deceptive or unconscionable trade practice," as defined by the governing Nassau County statute, with our state's highest court discounting the arguments presented by the local Department of Consumer Affairs, in part, as follows:
The agency argues that in displaying expired products for sale, the supermarket misled consumers by making an "implied representation" that the items were unexpired. That could well be true if the items were undated. Here, however, the dates were expressly represented, and a contrary conclusion as to the age of the items cannot be drawn by implication, so as to form the basis for a penalty. In short, the agency cannot ascribe to Shoprite an implied representation at odds with what undisputedly appears in writing.
While the local law may have been self-limiting in scope, we believe the courts could have relied upon state law--such as the General Business Law--which discourages "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service."
Are we to assume products are not fresh and that they are unfit for use when offered for sale by our local grocer or supermarket? Frankly, such a standard strikes us as nonsensical and works to reinforce questionable business practices. As Judge Graffeo noted in a dissenting opinion:
Under state law, when a retailer places a product on the shelf for sale to a consumer, it impliedly warrants that the product is fit for its intended uses (see UCC 2-314[2][c]). It was therefore not irrational for the County to conclude that, when a product may not actually be fit for its intended uses because it has expired, its placement on the shelf alongside unexpired products, and without any statement alerting consumers that its fitness cannot be guaranteed, amounts to a misleading practice. A reasonable consumer would presume that a retailer would not continue to display items on its shelves that may no longer be effective, even if used appropriately.
We believe Judge Graffeo got it right.
Have you ever watched how people shop? While most consumers don't bother looking at labels or expiration dates, some individuals--like senior citizens--have considerable difficulty reading or finding the information. And, frankly, they shouldn't have to bother. The onus should be on the merchant to ensure that products offered for sale are "fit" for consumption and may be safely utilized. Allowing the sale of expired products (without full and complete disclosures) furthers no cognizable public purpose we can identify.
By the way, what do you think the chances are that the Judges of the Court of Appeals would knowingly purchase expired medications or dine on expired foodstuffs?
For a copy of the Court of Appeals's decision in Matter of Food Parade, Inc. v. Office of Consumer Affairs of County of Nassau, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_07601.htm
For a copy of the Appellate Division's decision in this case, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2005/2005_05300.htm