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How can licking ice cream lead to a 20 year prison sentence?

Posted by Steven McNicholl | Jul 06, 2019 | 0 Comments

How does licking ice cream result in a 20 year State Prison sentence in Texas?  How would the same conduct be punished in California?  First we will look at the Texas law and how it may apply to this case and perform the same analysis using California law.

Texas Penal Code section 22.09 covers licking ice cream

Under section 22.09 of the Texas Penal Code, a person “commits an offense if he knowingly or intentionally tampers with a consumer product knowing that the consumer product will be offered for sale to the public or as a gift to another.”  Section 22.09 defines tampering as “alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.”  A violation of section 22.09 is a second degree felony with a maximum punishment of a fine up to $10,000 and/or a State Prison sentence of 20 years.
In the recent viral video, a woman in a Texas Wal-Mart can be seen removing a tub of ice cream, opening the lid, licking the top portion of the ice cream, and placing the tub back in the store refrigerator before leaving the area.  The video shows the woman grabbing the ice cream and licking a portion of the top.  Obviously this was done purposely or willfully as this does not appear to be an accidental. Clearly, licking introduces a person's saliva, germs, and any other particles in the mouth or on the tongue into the ice cream. 

The main argument will be over whether the licking makes it probable that the tub of ice cream will cause serious bodily injury.  It is possible that a person consuming the ice cream could contract a disease or illness resulting in serious bodily injury if the person.  A person with an immune disorder for instance could be hospitalized or die from common illnesses.  Is it probable though?  The closest comparison is a man in Texas was sentenced under this law to 5 years for spreading powdered human feces on food.  Will a jury find licking on the same level as powdered feces?  In theory a jury could.  Of course, if the woman knows she is infected with a communicable disease and is willfully or intentionally attempting to spread this disease, the defenses argument will become significantly weaker.

California Penal Code 347(a)(1) will likely apply to ice cream licking

How does California compare when it comes to licking ice cream?  California's Penal Code does not contain a tampering with consumer products offense.  The closest criminal charge is California Penal Code 347 criminalizes “willfully mingl[ing] any poison or harmful substance with any food.” A violation of Penal Code 47 is a felony with a maximum punishment of a fine up to $10,000 and/or a State Prison sentence of 5 years.    

California's law is similar to the Texas law, however, it applies to all foods and is not limited to consumer products.  The same analysis can be applied to the willful element, the video clearly shows the woman licking the ice cream on purpose if not intentionally.  In California, the case will come down o whether saliva is a harmful substance.  It is not a poison or probable to result in death even when considering how disgusting the human mouth really is.  Unlike poison, saliva's purpose isn't to cause death or injury.  Just like in Texas, if the woman is aware of any diseases that she may spread, a conviction will become more likely.       
California and Texas have very similar laws when it comes to licking ice cream in the store.  A California and Texas licker have the same defenses and obstacles to overcome.  Licking all by itself may not be enough for a conviction without evidence proving there was more in the saliva than just spit.  If evidence of a disease that can spread through licking is found, this woman may be facing serious time.  Absent a criminal conviction, the store is likely entitled to the value of the ice cream plus the cost of recalling the ice cream in the store as result in civil court.  


​If you licked ice cream, took a swig from soda bottle, or grabbed chips from a bag and then placed the item back in the store, you should contact the Law Offices of Steven McNicholl at (951) 405-0990 to determine what penalties you may be facing.  It is never too early to get ahead of a potential criminal case.

About the Author

Steven McNicholl

Steven McNicholl is a criminal defense attorney serving clients in Southern California.  He has the experience necessary to bring intensity and focus to every case ensuring you receive the dedication and vigorous defense you require in your case.


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