A range of legal issues served up when condiment repackaged with Heinz labels
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Food and Drug Administration investigators are looking into an unusual case where bottles of ketchup repackaged as a premium version of Pittsburgh-based H.J. Heinz Co.'s flagship product were found in a Dover, N.J., warehouse earlier this month.
The case has garnered attention in part because some bottles exploded, leaving a mess, according to the on-site report by the Star-Ledger newspaper. But for the company and federal officials, concerns raised by the situation touch on everything from food safety to trademark issues.
Heinz officials are actively involved in figuring out what happened. "Based on our preliminary investigation, it appears that the unauthorized operation purchased traditional Heinz ketchup and then illegally repackaged the product," said Michael Mullen, vice president of corporate and government affairs.
He said phony Heinz bottles and bottle caps were found at the scene.
There were also fake labels for the Simply Heinz version of ketchup that the company makes using real sugar.
As some consumers have begun trying to avoid the high fructose corn syrup used as a sweetener in many products, companies like Heinz have introduced versions of some products that use sugar instead. Typically those products cost more.
An FDA spokeswoman this week confirmed the agency is looking into what happened.
"FDA is currently engaged in an investigation of the issue, but would not be able to provide additional information, as the investigation is ongoing," said public affairs officer Pat El-Hinnawy.
The FDA takes seriously any potential adulteration of food products, said John G. Moore, an attorney with Venable LLP's Washington, D.C., office, who focuses his practice on issues involving the FDA as well as other agencies such as the U.S. Department of Agriculture and the Consumer Product Safety Commission.
Intentionally listing wrong ingredients would bring the agency's attention, as would handling a food product improperly. "When a food is packaged, it has to be in a sanitary environment," Mr. Moore said.
The agency has enforcement discretion, he said, that would take into account whether something was a mistake -- such as when a company accidentally puts the wrong label on a product -- or intentional.
"It's pretty easy to commit a crime when making food," Mr. Moore said.
It's not always clear what the rules are. He cited a case a few years ago when someone decided to sell bottles of salad dressing close to their expiration dates. The seller covered over the expiration date and the FDA decided that was mislabeling.
Mr. Moore said the offender eventually got off the hook because there was no specific rule about expiration dates on products like that.
But if someone was trying to repackage one product as another in order to be able to make more money, the FDA has the option of pressing charges that could lead to jail time, he said.
He did not know how long an investigation in a case like this might take. Heinz, which has spent decades and a lot of money building credibility with customers, doesn't seem inclined to go easy on anyone involved.
"As a company dedicated to food safety and quality, Heinz will not tolerate illegal repackaging of our products and we will prosecute to the fullest extent of the law anyone who engages in such illicit behavior," said Mr. Mullen.
He noted the company's quality assurance systems allow products to be traced to the factories where they are manufactured and packaged.
The company also wanted to make clear that the problem in the Dover case appears to be contained.
"We have not discovered any information that leads us to believe that the illegally repackaged product is on the market," Mr. Mullen said.
First Published October 29, 2012 12:00 am