The Law of the Ice Cream Tub Licker

Licking an ice cream tub in a supermarket and putting it back -- is that second-degree felony "tampering with consumer product" in Texas?

|The Volokh Conspiracy |

Well, let me just start by getting this on the record: "Good lord, man, I can't support that." (And, yes, the version I remember is the "nun-beating" one.) But while this is nasty behavior (see CBS News, Fox News, Today), which should indeed be criminal, I'm skeptical about the apparent police theory that this is second-degree felony food tampering under Texas law:

Before the suspect was identified as a juvenile, police said she could have faced up to 20 years in prison. They had planned on arresting her on a charge of second-degree felony tampering.

Texas Penal Code § 22.09 provides,

(a) (2) "Tamper" means to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.

(b) A person commits an offense if he knowingly or intentionally tampers with a consumer product [including food] knowing that the consumer product will be offered for sale to the public or as a gift to another.

(d) An offense under Subsection (b) is a felony of the second degree unless a person suffers serious bodily injury, in which event it is a felony of the first degree.

And licking food doesn't seem to "make it probable that the consumer product will cause serious bodily injury"—possible, yes, probable, no. (UPDATE: Just to be clear, matters might be different if the defendant knows she has a serious communicable disease that could be transmitted that way, but there seems to be no evidence this is so in this case.) To be sure, a nonprecedential Texas case does seem to stretch the "probable … will cause serious bodily injury" a bit, but that case involved someone sprinkling powdered feces on food, which strikes me as quite a bit more dangerous. (A jury sentenced the defendant to five years in prison.) The licked ice cream strikes me as comparable in dangerousness to guacamole at a party in which people were double-dipping, or for that matter a tub of ice cream into which someone had stuck a spoon that she had eaten from.

It's not that licking an ice cream tub is great for public health, and it's certainly illegal. But this particular Texas statute doesn't seem to cover it.

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  1. I suppose it would depend on what the licker knew of their own medical status; If they had a communicable disease, and knew it, 2nd degree would appear perfectly appropriate.

    1. A disease communicable through licking of a frozen food product? A disease which after it survives that step still have to get past all the defenses in the eater’s digestive tract? I suppose it’s theoretically possible that you could get sick. I can’t think of a single disease that would actually be communicable through the vector, however.

      1. Rhinovirus (colds)
        Flu virus.
        Epstein-Barr virus (mononucelosis, or mono)
        Type 1 herpes (cold sores)
        Strep bacteria.
        Hepatitis B and hepatitis C.
        Cytomegalovirus (a risk for babies in the womb)

        1. I am in immunosuppressed after a kidney transplant and contracted CMV through someone’s gross carelessness and it destroyed more than a year of my life. My adrenal function has still not returned to normal and I still carry it. So yes it should be a felony.

          1. Your sad pity story doesn’t change the meaning of words.

            “(a) (2) “Tamper” means to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.”

            Move along.

            1. The introduction of saliva is adding a foreign substance and the action of the tongue alters the ice cream in the area it is applied. Metabolism begins in the tongue and saliva is a digestive chemical.

              1. Since you’re evidently too stupid to realize which part of the English language you’ve failed at, let me provide the quote again, shortened to draw attention to your deficiency.

                “probable”

                “serious bodily injury”

                The fact that someone’s saliva MIGHT cause YOU issues, does not make it PROBABLE in the legal sense to cause SERIOUS BODILY INJURY.

                You are not the standard. The law doesn’t give two shits about your unique issues. The fact is that someone’s saliva is not PROBABLY going to cause SERIOUS BODILY INJURY to the average person.

                Have you considered a brain transplant perhaps? Seems you need that more than a kidney.

                1. Jason,
                  Prior to identifying the individual and determination of that individual having/not having a known disease then “probable” and “serious bodily injury” were both applicable. LE will always use the worst case scenario until the evidence is collected and the DA makes a determination.

                  Have you considered applying your own ignorant standards to yourself; especially before commenting on others.

                  1. Perhaps you should check what the definition of ‘probable’ is.

                    Then find yourself a nice, sturdy rafter and a long rope.

      2. “A disease which after it survives that step still have to get past all the defenses in the eater’s digestive tract?”

        e-coli? Definitely survive the digestive tract. Not sure it could survive the ice cream though.

        1. Ice cream is a fairly benign environment so far as bacteria are concerned; It’s not salty or sugary enough to cause osmotic damage, the ph isn’t unreasonable, and bacteria can typically shrug off temperatures much colder than a commercial freezer.

          You could do worse than a tub of ice cream in the freezer, if you were deliberately trying to preserve bacteria.

          And viruses are even tougher.

  2. The Law of the Ice-Cream Tub Licker with terror and slaughter returns!

  3. “The licked ice cream strikes me as comparable in dangerousness to guacamole at a party in which people were double-dipping…”

    Which I assume is a felony, no?

  4. Is there any crime so trivial that police won’t grossly overreact?

    1. They should charge her with second-degree food tampering. Send the nasty bitch to prison. Not washing your hands after using a public restroom should be a felony too.

      1. Maybe pissing on your hands should be a felony.

        1. “Maybe pissing on your hands should be a felony.”

          If you piss on your hands in a public place and touch things other people might touch, then you should be charged with a felony, because civilized people are disgusted by nasty fuckers who don’t wash their hands after touching their filthy selves.

          Spreading germs and disease is a much greater threat to society than terrorism or violent crime. Deliberately doing so should be considered a terrorist act. Send the assholes who won’t wash their hands to Guantanamo.

          1. Technically, unless you have a urinary tract infection, urine is essentially sterile, and so isn’t going to spread disease.

            But I’m with you on treating basic sanitation as a bit more important than, say, San Francisco does. It’s amazing how much people lost sight of the importance of sanitation, just because antibiotics made it look less necessary for a little while.

            1. Healthy urine is recommended for use in emergency battlefield conditions for washing dirt from wounds (it is usually more sterile than standing water found in similar conditions).

            2. If I remember right, viruses are small enough to get through the filters in the kidneys and urine can carry them. If that’s wrong, there’s the issue that once you reflect on how that region of the body gets after just a couple of days without a shower you realize you might as well be touching your armpit.

        2. It should, which is why I am careful to only piss on other people’s hands.

    2. “Is there any crime so trivial that police won’t grossly overreact”

      Sure. Redirecting all government e-mails you get, including classified ones, to your own privately held server, which is almost certainly hacked by multiple foreign governments.

      1. Ah, the “Oldies-but-Goodies” argument. And let’s go back to Ollie North dealing with terrorists and lying under oath to Congress and the American people. Yeah, it’s decades-old by this point. But I’m assuming that Armchair would like a digression into sins that political critters on both sides have done in the past.

        1. Oh why not. But there’s a key difference between Ollie North and Mrs Clinton’s server escapades, if we’re talking about crimes and the police reactions….

          Ollie North was investigated, indicted, tried and convicted

          Mrs Clinton was…well a was a formality of an investigation. Everyone “knew” there wouldn’t be an indictment.

          1. Oliver North was following orders.

            Hillary Clinton was giving orders.

            The ones in command who give orders are seldom investigated, indicted, tried or convicted

      2. “which is almost certainly hacked by multiple foreign governments.”

        But it wasn’t, according to multiple investigations. Unless you are referring to the numerous government officials, including current White House officials, who use private accounts, violating the same record-keeping laws, and more open to hacking.

    3. “Is there any crime so trivial that police won’t grossly overreact?”

      America’s border patrol agents are the embodiment of the answer.

      (Spoilers: Clingers shouldn’t waste time trying to get it.)

  5. At a bare minimum, it would seem that the young woman just bought all of the Tin Roof ice cream thrown out by that Walmart, and at any other Walmarts because of what she did. I agree that as a minor, and without clear evidence of any greater damages, she should not spend 20 years in jail. She might owe a lot of money though.

    1. I like JohannesDinkle’s take on it. That would be “natural consequences” discipline.

      JohannesDinkle also said “bare minimum”, leaving room for sanctions related to the hazard she caused.

  6. Presumably some court, somewhere, has had a stab at what “probable” means ? During the first seven nanoseconds I was thinking about this, I thought “well it’s got to be at least 50%.”

    But then I thought “probable cause” – the cops must be getting warrants on 10% chances every day.

    1. Probable cause generally isn’t 50%. Usually closer to 30%

      1. Police probable cause is usually closer to “Not obviously impossible”

  7. While I’d agree that ice cream licking probably does not fall under this statute, I do think that each state should have some version of “being an a**hole in the first degree” (and second and third degree, as well, for lesser a-hole-ery behavior.

    Thanks for the reference to my all-time favorite Opus strip. I can never hear the terms “penguin lust” or “nun-beating” without a smile (…and that’s really unfortunate, since–in 99.9999934% of cases, the concept of nun beating is no cause for joy of any type)

    1. I do think that each state should have some version of “being an a**hole in the first degree”

      Isn’t that covered by Congressional elections ?

  8. up to 20 years. We all know that if a farce. While what she did warrants punishment, she will not get twenty years. Probably some jail time, community service and suspended jail sentence.

    1. Grim enough in Texas. See Scott Henson’s Grits for Breakfast blog and search it for stories about the juvenile prison system.

    2. Second degree felonies in Texas have a range of 2-20 years in prison, and you’re eligible for probation unless you have a prior felony conviction. Unlike in some states, you’re sentenced to a set number out of that range — so they jury would sentence you to, say, 3 years in prison, not you can serve anything between those two numbers. That gives the judge or jury a lot of freedom in making the punishment fit the crime. So while this crime is eligible for up to 20 years in prison, there’s no way she would’ve gotten sentenced to anything close unless she had a significant criminal history or something. (And as a juvenile, she’s not subject to anything close to that range anyway.)

  9. So EV can I assume you would have no problems with waiters/cooks routinely spitting in your food? This person intentionally contaminated a food product on unsuspecting customers. As usual, it is the small minority of people who cause others to take extraordinary countermeasures that cost all of us increased prices. But the greater cost is not the price jump, it is the loss of a common bond of decency, the breaking of a societal contract, and a fracturing into “us and others.” We can’t all be in this together if we’re not all into this together. Would you want this person shopping at your local grocery? Serving/cooking your food? Babysitting your children?

    1. “So EV can I assume you would have no problems with waiters/cooks routinely spitting in your food?”

      Seriously? He neither stated nor implied anything remotely close to that.

      1. So, what’s the difference between a long intentional lick and spitting? The weight of spit? Pardon me for not knowing where you draw a line for people depositing phlegm in food. I guess my line comes much earlier than yours.

        1. Apparently the Texas legislature disagrees with you, since it limited the offense to food tampering that is probable to cause serious bodily injury.

        2. It’s not about where I would draw the line or where EV would draw the line, it’s about where the Texas legislature DID draw the line.

    2. ME2R: Why would you assume that, given that I wrote, in the first paragraph, “But while this is nasty behavior …, which should indeed be criminal, I’m skeptical about the apparent police theory that this is second-degree food tampering under Texas law”? Wouldn’t a better assumption be that I think waiters and cooks spitting in my food “should indeed be criminal,” but probably wouldn’t be covered as second-degree felony food tampering under Texas law?

      1. I guess I don’t think food tampering, like pregnancy, can be minor. Although not necessarily lethal, it certainly has that possibility – particularly when some members of the public have compromised immunity systems. It’s like shooting a gun down a street indiscriminately – even if you miss and don’t strike someone in the head, it’s a serious violation. I’d like her, and others inspired by her jackassery, not to even think about doing that. Thus, slap em hard.

        1. So ME2R I can assume that you’re fine with the law being applied in a punitive, vindictive fashion despite the text of the law in question not applying to the case.

          Frankly, I’m surprised that EV bothered to respond to that non-sequitur and red herring bullshit in the first place.

          1. Perhaps because I have a valid point? A little bit of food tampering? Are f*ing crazy?

            1. LOL.

              You did not, do not, and will not have any valid points in this discussion.

              Your comment was nothing but logical fallacies and ignorance. Licking a tub of ice cream is not even remotely similar to firing a gun down a busy street.

        2. @ME2R

          You should have framed your original claim as a “slippery slope” argument, after which you can then start to analogize to all sorts of end-of-the-world scenarios that should raise alarms in any reader. This is the go-to rhetorical tool for the lawyer/blogger/influencer seeking to sway opinion in one direction or the other.

          You might claim that by not treating this case as a serious felony it encourages future bad actors to engage in even more egregious behavior, behavior that could lead to the deaths of millions of innocent persons. It is only a matter of degrees on the slippery slope from this ice cream licking to a pandemic that ends America as we know it. Ipso facto, this girl must receive life in prison. Slap a catchy headline to your post and viola, you’re a legal analyst.

          Or, you could go in the opposite direction and claim that this girl was just expressing herself and her preference for ice creams. If the State is allowed to punish a young girl simply for expressing her love of ice cream (you gotta stir up those emotional images) then its a slippery slope to the State mandating that every citizen have their tongue removed. This should worry all Americans! A benefit of this approach is you can throw in a pun about “chilling speech,” which is the sole reason why I like the argument.

          The next lesson will be in “distinguishing prior cases,” a tool that allows you to put the brakes on what an opponent argues is a slippery slope. An example would be:

          “To be sure, a nonprecedential Texas case does seem to stretch the “probable … will cause serious bodily injury” a bit, but that case involved someone sprinkling powdered feces on food, which strikes me as quite a bit more dangerous. ”

          See. you just slap in a “but that case involved” and the slippery slope is closed for business. By all means though, you could have just as easily written a post about that nonprecedential opinion where you claimed that it was a slippery slope to justifying prosecution of a girl who simply licked ice cream (sound the liberty alarm). This the fun that you can have with analogizing and distinguishing. The present case should terrify you because (insert analogizing) …. and don’t mind that previous case because (insert distinguishing).

          Which cases get drawn in which direction just depends on which issues you care about or who’s paying your fee. Fortunately, for every analogizer there is a distinguisher somewhere out there.

          Wait, what was your post about again?

    3. The question is not whether it is bad behavior.
      It is beyond doubt that it is bad behavior.
      (So is spitting into someone’s food behind their back; it is cowardly, despicable, and demonstrates lack of balls.)
      The question is whether it calls for treatment as a felony.
      A felony arrest (absent conviction) can be a life ruiner.

  10. Not saying this is reliable, but the TV show Mythbusters did a “scientific” test of the hazards of double-dipping. They used a control, and tested post-double-dipped samples using standard bacteria cultures. Based on their results, they pronounced the supposed double-dipping hazard a busted myth.

    More generally, there is increasing scientific concern that too much sterile practice is hazardous to the human immune system.

    1. Well, sure: Double dipping is approximately as hazardous as, say, kissing, or shaking hands. Which is to say, not dangerous at all as long as you keep it in the family, because everybody is carrying the same germs anyway. I’m not really sure why there’s such a fuss about it.

      If you REALLY wanted to improve public sanitation, you’d bring back copper and brass doorknobs. Copper is naturally antiseptic.

  11. If the Mythbusters say it ain’t so, then it ain’t so.

    1. Lol. I remember Mythbusters saying that a can of aerosol will not blow up in your car. I have first hand knowledge that it can. Blew a can of body spray out my side window in Phoenix one summer.

  12. Thank you everyone for re-confirming what I always say.

    Errybody a Libertarian. . .well until the planes crash and the apples are poisoned and now when the ice cream is licked.

    Sure, I don’t know where the line is for too many laws but I also don’t going around calling myself a Libertarian (and all that entails) either.

    1. All you’ve really confirmed is that you don’t grasp libertarianism.

    2. You’re a moron. Libertarians believe that one’s right to swing his fist ends at the other guy’s nose.

      1. Or the right to extend your tongue ends at the beginning of the other guy’s ice cream.

      2. If that is the extent of Libertarian beliefs, it certainly makes it easier to remember how to be a Libertarian.

  13. I don’t think there is a charge for the specific conduct in this case, so I imagine the only state charge would be the generic disorderly conduct (aka “disturbing the peace”, “breach of the peace”), a charge classified as a Class C misdemeanor, the lowest level of offense in Texas (the equivalent of a traffic ticket) with a maximum punishment of a $500 fine (and no jail time). Additionally, a court could order restitution, but, I believe that would be capped at $500 (which I imagine would cover the discarded ice cream). Other states have more serious potential criminal consequences. Beyond that (and this seems extremely unlikely), the federal Food, Drug, and Cosmetics Act or the Anti-Tampering Act might apply.

  14. In general, I don’t think that prospective immigrants have any due process right to any particular process or “fairness” in making decisions about whether to admit them into or exclude them from the country. Congress can require it, but it doesn’t have to. There is no more constitutional obligation to be “fair” to prospective immigrants about whether or not to admit them than a woman deciding whether or not to have an abortion has a Constitutional obligation to be “fair” to the fetus. The Supreme Court has made clear that the right to arbitrary free choice is part of the essence of what sovereignty and autonomy mean.

    That said, I don’t think this means that a guard has a legal right to rape a prospective immigrant/deportee who is under detention.

    I therefore think the 3rd Circuit erred by framing the question as “whether immigrants possess due process rights” in undifferentiated fashion, as if the one issue necessarily decided all issues. In an abortion context, 3rd parties don’t have a right to terminate the fetus, only the designated choice maker has that right. Immigration, I think, is no different.

    Thus I think the 3rd Circuit should have looked for statutory law prohibiting assault and rape, rather than going directly to the constitution, or at least narrowed the scope of the ruling, as in fact prospective immigrants on US soil don’t have due process rights concerning the specific issue of whether to admit or exclude them. The prison guard could have been sued individually for conduct taking advantage of but not part of his position. If the plaintiffs, perhaps strategically, had raised only Due Process claims covering due process in immigration matters as a blanket right, the 3rd Circuit could have given them an opportunity to amend and narrow their complaint.

    1. This is a comment on the “short circuit” post. I don’t know how it ended up getting into on this post on a different topic.

  15. Did nobody even bother to read the Texas penal code itself?

    Causing bodily injury is only the third relevant clause.

    The first one is with the intent to cause fear.

    The second is to affect the sale of the product.

    I think it’s pretty obvious she’s guilty of the second clause.

    Even Especially if it was a just a dumb prank, she knew what she was doing was wrong on some level — otherwise, why would it have been so amusing to her?

    Throw in her decision to broadcast her actions on social media, and it seems to me that it was her intent to disrupt the sale of the product.

    Now as to sentencing: ALL felonies in the second degree are punishable by an absolute maximum of 20 years but only an absolute minimum of 2 years; it’s not as if there is a specific set of sentencing guidelines solely for the crime of food product tampering.

    1. ClaLib: I did read the Texas Penal Code provision, and all the subsections require tampering with a consumer product (or threatening to do so, which isn’t relevant here). And “tamper” is defined — again, for all the subsections — to mean “to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.” So no matter what subsection is being used, there has to be (at least) an action that “make[s] it probable that the consumer product will cause serious bodily injury.” I don’t think that requirement is satisfied here.

      (b) A person commits an offense if he knowingly or intentionally tampers with a consumer product knowing that the consumer product will be offered for sale to the public or as a gift to another.

      (c) A person commits an offense if he knowingly or intentionally threatens to tamper with a consumer product with the intent to cause fear, to affect the sale of the consumer product, or to cause bodily injury to any person.

      (d) An offense under Subsection (b) is a felony of the second degree unless a person suffers serious bodily injury, in which event it is a felony of the first degree.  An offense under Subsection (c) is a felony of the third degree.

      1. I stand corrected.

        Would you then suggest that the Texas Legislature redefine “tamper”? Obviously, it couldn’t affect this case (ex post facto), but if word got out that such action effectively could not be successfully prosecuted, who wouldn’t enjoy sampling every/any given unopened product in the grocery store?

        Say you see a brand you’re unfamiliar with; now you can try before you buy. Your position does seem to be that such action is or ought to be criminal, so which would you prefer:

        •A different charge, such as shoplifting.
        •A redefined definition of “tampering.”

      2. I’m curious Prof,

        Why is it wrong for law enforcement to investigate as a higher level crime then allow the DA to determine what the evidence shows before actually charging the individual? Especially when one has video evidence that a crime has been committed?

  16. Yeah, years ago my wife described to me shopping — for the last time — with a teen-age relative who thought it was a cool prank to open and sample salad dressing, and put it back on the shelf.

    But seriously, the obvious intent of Texas Penal Code § 22.09 is felonious tampering/alteration/contamination of consumer products with malicious intent “to make it probable that the consumer product will cause serious bodily injury”.

    Copping a free taste is intentionally or thoughtlessly stupid and yucky and of fellow consumers. It is NOT done with felonious intent of making it “probable that the consumer product will cause serious bodily injury.”

    The intent of the legislature was to block deliberate contamination with intent to do harm (like the
    Chicago Tylenol murders.

    Over-charging by prosecutors makes a mockery of justice and undermines respect for the law.

    1. … yucky and disrespectful of fellow consumers …

    2. However we are arguing about what police were investigating not what the DA charged based on the evidence. I agree that over-charging by prosecutors can make a mockery of justice however investigating the possible higher level criminal act is justice and respect for the law. Without evidence then the prosecutor cannot determine the appropriate charge.

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