When Theft of a Drug is Really Tampering

If you steal some pain relief patches from a box in a pharmacy, then reseal the box and leave it on the shelf, are you stealing, or tampering with a consumer product?  That was the question confronting the 9^th U.S. Circuit Court of Appeals Wednesday and they said it was tampering.

The answer has to do with re-gluing the package shut.

The court’s decision is bad news for Kenyon Lyle. He worked as a pharmacist at a Safeway in Kennewick, Washington and pled guilty to two counts of  tampering with packages of Fentanyl, a pain relief medication.  He reserved the right to appeal and asked the court to find he was only guilty of the less serious crime of theft.

After a customer complained to police that she purchased an empty box, an investigation found 12 more empty boxes.

The Federal Anti-Tampering Act was passed in 1984, in the wake of deaths that resulted from consumers ingesting Tylenol laced with cyanide.  Congress believe someone bought the capsules, tampered with them, reinserted them in the bottles and boxes where they were sold and returned them to the shelves where victims purchased them.

The legislative history shows “that both houses of Congress viewed ‘tampering’ as requiring some alteration of the product or its packaging,” wrote Judge Marsha Berzon.

The court agreed with Lyle that a more restrictive definition of “tamper” should apply – one that requires alteration of the item tampered.

Then the panel said the indictment was sufficient to allege tampering because he was accused of opeing the box of Fetanyl patches, removing them and regluing the box.

Opening the box eliminates the secure closure protecting the contents.  “Regluing a box alters the container further, by introducing a material – the glue – not installed by the manufacturer, and by creating a false impression of a secure package,” Berzon wrote.

Taken together, that constitutes tampering, the court said.

The court upheld his conviction for tampering.  Berzon was joined by Judge Mary Schroeder and Richard Paez.

Case: U.S. v. Lyle, No. 12-30389