Is It Really Illegal To Put Boogers in a Sandwich?

Food tampering laws, explained.

Two North Carolina Domino’s employees were fired Tuesday after videos of their kitchen antics became overnight YouTube sensations. In the clips, one employee stuffs cheese up his nose and waves salami near his rear end before putting these ingredients on a sandwich. On Wednesday, both employees were slapped with felony charges. Wait—is it really a felony to put boogers in someone’s food?

It is in North Carolina. Food tampering laws differ from state to state, but North Carolina’s statute sets a fairly low bar: You can be charged with a Class I felony for knowingly distributing food that could cause “mild physical discomfort without any lasting effect.” (Technically, you don’t even need to distribute it—just leaving the food somewhere “in a position of human accessibility” is enough to get you charged.) If the hapless Domino’s employees are convicted, they could get up to one year in jail.

Food tampering isn’t a felony in all states, however. In Ohio, spitting in someone’s food is a felony if you know you have a communicable disease, but otherwise, it’s a misdemeanor. In New York, altering or contaminating food with “intent to cause physical injury” or “instill in another a fear [of] physical injury” is a Class A misdemeanor as long as the risk posed is relatively minor. But prankster restaurant employees in the Empire State could still end up going to jail. In fact, the maximum penalty for a Class A misdemeanor in New York is the same as for a Class I felony in North Carolina: one year in the slammer.

There are also two federal laws that deal with food tampering. In order to charge the Domino’s employees under the Food, Drug, and Cosmetic Act, a prosecutor would have to prove that the tainted food was going to cross state lines and that nose drippings and flatulence constitute “poisonous, insanitary, or deleterious ingredients.” To prosecute them under the Anti-Tampering Act, he’d have to demonstrate that a contaminated sandwich could “affect interstate or foreign commerce” and that the unsavory additives pose a risk of “bodily injury.” Injury, in this context, is pretty loosely defined; it can mean “impairment of the function of a bodily member, organ, or mental faculty.”

The Domino’s employees maintain that the sandwiches in their viral hit were never sent to any customers. But this excuse won’t necessarily let them off the hook: They could still be liable under Section C of the Federal Anti-Tampering Act, which states that someone who “knowingly communicates false information that a consumer product has been tainted” can be fined or imprisoned for up to five years.

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Explainer thanks Donna Byrne of William Mitchell College of Law, Peter Barton Hutt of Covington & Burling LLP, and Bill Marler of Marler Clark LLP.