NY Penal Law § 145.40: Tampering with a Consumer Product in the Second Degree

These days, a multitude of consumer products have specially designed caps and seals to stop people from tampering with what’s inside the package. Warning labels alert consumers that if a seal is broken or if the product packaging looks as though it has been tampered with, then they should not buy that particular item. Although a well-known product tampering matter from back in the early 1980’s involved an over-the-counter medication, many other products have been tampered with over the years, including food products and beauty products. For the last few decades, both state and federal laws have been enacted in favor of consumers, specifically criminalize tampering with a consumer product.  You would have committed the crime of tampering with a consumer product in the second degree under New York Penal Law § 145.40 if:

1. You engage in the act of altering, adulterating or otherwise contaminating any consumer product,
2. In altering, adulterating or contaminating a consumer product, had the intention of injuring another person or instilling fear that injury might occur, and
3. You did not have the right to do so.

An Example

Kevin was a worker at a fast food restaurant. He did not like the job very much.  In fact, he loathed the restaurant’s owner. Nevertheless, Kevin could not find another job to move to. On a particularly difficult day on the job, Kevin made up his mind to get revenge on his boss for being so cruel to him. His idea was to sneak a little bit of rat poison into a couple of salads and then serve them to customers. He did not really want to kill anyone.  He was just hoping that a few people would get sick so that the health department would impose a fine or shut down the restaurant. For this activity, Kevin could be prosecuted under the tampering with a consumer product in the second degree statute.   Contaminating the salads was an act of tampering with a consumer product with the intent of causing physical injury.

Offenses that are Related

Tampering with a consumer product in the first degree: New York Penal Law § 145.45

Criminal tampering in the third degree: New York Penal Law § 145.14

Criminal tampering in the second degree: New York Penal Law § 145.15

Criminal tampering in the first degree: New York Penal Law § 140.20

Possible Defenses

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For you to be convicted of tampering with a consumer product in the second degree, the prosecutor must demonstrate that you tampered with a product with the intent to physically injure another person. If you can show the court that you never wanted or expected anyone to consume or use the product, then you might have a valid defense against the charge.

Legal Scenario: What Would You Do?

Scenario

A grocery store manager discovered that someone had been injecting a substance into sealed juice bottles on store shelves using a syringe, and security camera footage pointed to a recently fired employee. The former employee was arrested and charged under NY Penal Law § 145.40 with tampering with a consumer product in the second degree.

What does the prosecution need to prove for a conviction under NY Penal Law § 145.40, and what kind of penalties am I facing?

Attorney's Answer

Under NY Penal Law § 145.40, the prosecution must prove that you intentionally altered, tampered with, or otherwise contaminated a consumer product with reckless disregard for the risk of creating a substantial danger to public health or safety. This is classified as a Class E felony in New York, which carries a potential sentence of up to four years in state prison and significant fines. A strong defense strategy could challenge whether the alleged tampering actually created a substantial risk to public health, or question the reliability of the surveillance evidence linking you to the conduct. Given that product tampering charges carry serious collateral consequences — including a permanent felony record that can affect employment and housing — it is critical to retain experienced counsel who can evaluate whether the charges can be reduced or dismissed based on the specific facts of your case.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Tampering with a consumer product in the second degree is categorized as a class A misdemeanor. The repercussions of a conviction for this offense is that the judge may order that you be sent to jail for up to a year. That said, there is also a possibility that the judge will not sentence you to any jail time.  He or she may sentence you to a 3 year probation term instead. You might also be obligated to pay a fine.