Summary of a Recent
Judicial Development in
Food Safety

Producer Convicted of Violating
Virginia Food Act

Eugenio A. Lomba
National AgLaw Center Graduate Assistant

In an appeal brought by a producer who was convicted for offering misbranded food for sale and for operating a "food manufacturing plant" without inspection, the Virginia Court of Appeals has ruled that the evidence presented at trial was sufficient to establish that the defendant operated a food manufacturing plant as defined in the Virginia Food Act and that the defendant sold food items in packaged form. McClellan v. Commonwealth, 576 S.E.2d 785, 786-89 (Va. App. 2003). The appeals court also ruled that the trial court properly admitted expert testimony from the Director of Consumer Protection for the Department of Agriculture and that her right to be protected from double jeopardy was not violated. See id. at 789-91.

The Commonwealth of Virginia brought an action against Terry McClellan, defendant, alleging that McClellan had offered adulterated food for sale in violation of Va. Code Ann. § 3.1-388, offered misbranded food for sale in violation of Va. Code Ann. § 3.1-388(a), refused entry for inspection in violation of Va. Code Ann. § 3.1-388(e), and operated a food manufacturing plant without inspection in violation of Va. Code Ann. § 3.1-398.1. Id. at 786. McClellan produced and sold goats' cheese products that she produced on her farm. See id. The trial court determined that McClellan was guilty of the offenses of offering misbranded food for sale and operating a food manufacturing plant without inspection. See id. McClellan appealed the trial court's decision to the Virginia Court of Appeals. See id.

McClellan argued that the trial court erred in

1) finding the evidence sufficient to establish that she operated a "food manufacturing plant," within the meaning of the statute; 2) admitting expert testimony which amounted to "irrelevant and improper opinion;" 3) finding that her conviction for offering misbranded food for sale did not constitute double jeopardy; and 4) finding the evidence sufficient to establish that she sold the food items in "package form" as required pursuant to Code § 3.1-396(e)).

Id. at 786.

The appeals court determined that McClellan's operation met the definition of a "food manufacturing plant" within the meaning of Va. Code Ann. § 3.1-398.1. See id. Section 3.1-398.1 of the Virginia Food Act provides that

[N]o person shall operate a food manufacturing plant, food storage warehouse, or retail food store until it has been inspected by the Commissioner. This section shall not apply to food manufacturing plants operating under a grant of inspection from the Bureau of Meat and Poultry Inspection or a permit from the Bureau of Dairy Services of the Virginia Department of Agriculture and Consumer Services and Grade A fluid milk manufacturing plants and shellfish and crustacea processing plants operating under a permit from the Virginia Department of Health.

Id. (citing Va. Code Ann. § 3.1-398.1) (emphasis supplied).

Noting that the term "food manufacturing plant" was not defined in the Virginia Food Act, the appeals court explained that it had to discern the intention of the legislature by examining the "whole and every part of the statute taken and compared together, giving to every word and every part of the statute, if possible, its due effect and meaning, and to the words used in their ordinary . . . meaning, unless it plainly appears that they were used in some other sense." Id. It also explained that "[i]f the intention of the legislature can be thus discovered, it is not permissible to add to or subtract from the words used in the statute." Id.

The court explained that based on Virginia case law, "manufacturing requires 'transformation of a raw material into an article of substantially different character." Id. (citing Commonwealth v. Orange Madison Coop., 261 S.E.2d 532, 534 (Va.1980)). McClellan conceded that "her cheese making [fell] within this definition of 'manufacture,' but . . . that she manufactured the cheese on her family farm, which does not constitute a 'plant.'" Id. The court noted, however, that "Webster's Third New International Dictionary defines the term 'plant,' as 'the land, buildings, machinery, apparatus and fixtures employed in carrying on a trade or a mechanical or other industrial business' and/or 'a factory or workshop for the manufacture of a particular product.'" Id. (citation omitted). It also noted that the Virginia Board of Agriculture and Consumer Protection, the agency that enforces the Virginia Food Act, has adopted the following definition for the term "plant:" "[P]lant means the building or facility or parts thereof, used for or in connection with the manufacturing, packaging, labeling, or holding of human food." Id. (citing 21 C.F.R. § 110.3(k)).

The court stated that based on these definitions of the term "plant," the ordinary use of term includes "any building or dwelling where such 'manufacturing, packaging, labeling, or holding of human food' takes place.'" Id. Thus, it concluded that "McClellan's 'operation' met the definition of a 'food manufacturing plant' within the clear context of the statute.'" Id.

The appeals court also determined that the trial court did not err when it admitted expert testimony from the Director of Consumer Protection for the Department of Agriculture. See id. The court noted that in Velazquez v. Commonwealth, 557 S.E.2d 213 (Va. 2002), the Virginia Supreme Court stated that "'an expert's testimony is admissible not only when scientific knowledge is required, but when experience and observation . . . give the expert knowledge of a subject beyond that of persons of common intelligence and ordinary experience . . . .'" Id. (citing Velazquez, 557 S.E.2d at 218) (quoting Neblett v. Hunter, 150 S.E.2d 115, 118 (1966)). The appeals court also noted that in C & O Ry. Co. v. Meyer, 143 S.E.2d 478 (Va. 1928), the Virginia Supreme Court stated that "'[t]he admissibility of expert evidence is largely a matter in the discretion of the trial court, and its ruling allowing a witness to so testify will not be reversed unless it clearly appears that the expert was not qualified.'" Id. (quoting Meyer, 143 S.E.2d at 483).

The court stated that the Director was qualified as a food safety expert, "but also testified as an employee of the Department of Agriculture. His testimony tended to support the Commonwealth's contention that McClellan's operation fell within the parameters of the Virginia Food Act and that the agency properly attempted to inspect it." Id. (citation omitted). Thus, the court determined that the Commonwealth's food safety expert testimony was admissible and that there was "no abuse of discretion in permitting his testimony pertaining to the inspection process . . . ." Id.

The appeals court also ruled that the trial court did not err when it determined that McClellan's conviction "for offering misbranded food for sale did not constitute double jeopardy." Id. The court explained that Va. Code Ann. § 3.1-388(a) "prohibits '[t]he manufacture, sale, or delivery, holding or offering for sale of any food that is adulterated or misbranded.'" Id. McClellan asserted that because the trial court acquitted her on the allegation that she offered adulterated food for sale, "further prosecution for the offense of misbranding in circuit court amounted to a successive prosecution, violating principles of double jeopardy." Id.

The court concluded that

it is well settled that an appeal de novo from a general district court to a circuit court annuls the former judgment as completely as if no trial had ever occurred. Thus, McClellan's argument that her voluntary appeal, after her conviction for the misbranding charge in district court, constituted a new trial is without merit, and we find that the trial court committed no error in determining that McClellan's prosecution and conviction for the charge did not violate her rights against double jeopardy.

Id. (citation omitted) (italics in original).

Finally, the court determined that the trial court did not err when it determined that McClellan's products were sold in "package form" as required by Va. Code Ann. § 3.1-396(e). Section 3.1-396(e) provides that a food is considered to be misbranded

[I]f [it is] in package form, unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; (2) the name of the article; (3) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided, that under clause (3) of this subdivision reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Board.

Id.

The appeals court noted that the ordinary meaning of the term "package" is "'a commodity in its container; a unit of product uniformly processed, wrapped or sealed for distribution.'" Id. (citation omitted). It also noted that the evidence at trial demonstrated that McClellan provided cheese to purchasers in zip-lock bags with writing on them. See id. The court concluded that "[t]his certainly provided credible evidence upon which the trial court could reasonably find that each product was uniformly placed in some sort of 'wrapping' or 'seal' for distribution and, thus, we find no error in the trial court's determination that the cheeses were offered in 'package form.'" Id.

The case was decided on February 25, 2003; this summary was posted April, 2003