- - Wednesday, January 4, 2012


Should mislabeling syrup (to mix metaphors) be a federal beef? If so, is five years in the big house an appropriate punishment? How about 45 years?

If you answered all three questions “yes,” then the Maple Agriculture Protection and Law Enforcement Act of 2011 is the bill for you. The MAPLE Act would make it a federal crime - punishable by up to five years’ imprisonment - for anyone to “knowingly and willfully … distribute into interstate commerce a product that is falsely labeled as maple syrup.”

Certainly someone who falsely labels a product should be punished. But there are ample laws on the books to deal with those who mislabel maple syrup. The MAPLE Act is simply piling on. Introduced two months ago, it’s the latest example of the unfortunate congressional tendency to expand federal criminal law to cover any and all undesirable behaviors.

It’s not like anyone duped by a false syrup label is without legal recourse. An injured party can seek relief under the law of torts, contracts and restitution, and fraud is already a criminal offense under both state laws and numerous federal statutes.

Any large-scale fraud can be addressed under one (or both) of the two most widely used federal anti-fraud laws: The mail fraud and wire fraud acts. After all, most anyone contemplating running a syrup scam would need to use mail or telecommunication systems to advertise, ship their goods or get paid.

Maybe neither of these statutes could reach someone who sells faux maple syrup at a cash-only roadside stand, but why should such (again, to mix metaphors) small-potatoes cases require the intervention of the feds? Isn’t that more a matter for state or local law enforcement?

With plenty of anti-fraud laws on the books, it is hard to see what this proposed MAPLE law would accomplish other than give those in the maple syrup industry bragging rights over the fact that they have a federal fraud statute of their own.

There is, however, a definite downside to redundant criminalization. Keep in mind that the punishments provided under MAPLE would be layered on top of the penalties provided by existing laws. Thus, the new five-year sentence for maple mislabeling could be tacked onto the sentence for mail fraud (up to 20 years’ imprisonment), wire fraud (up to 20 years’ imprisonment) and whatever else the prosecutor can charge. Are maple syrup con artists sufficiently heinous that they should be locked up for 45 years, all at the taxpayers’ expense?

If the maple syrup lobby gets its way, we can certainly expect other interest groups to line up for their own personal fraud statutes. Consider, then, the raft of statutes that this legislation could spawn: False labeling of Iowa corn, Virginia peanuts or Coney Island hot dogs soon could become separate federal offenses.

Many in Congress would be happy to go along. As professor William Stuntz once noted, legislators and prosecutors like to double up on the penalties for the same conduct and, to do so, prefer to use existing laws as precedents for future ones.

Of course, fraudulent conduct should be deterred or punished, even stopped if possible; no one would disagree. But is a sledgehammer needed to accomplish that goal? Put aside the harm done to the offender and his family (an unfortunate but nonetheless inevitable example of the collateral damage done by criminal sentencing). What marginal retributive or deterrent benefits do such criminal laws provide? If the answer is none - and it most likely is - then such laws would be all cost and no benefit.

• Paul J. Larkin Jr. is senior legal fellow and manager of the Overcriminalization Initiative in the Center for Legal and Judicial Studies at the Heritage Foundation (heritage.org).

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