Food Stamp Law and Stores that Cater to Religious Food Preferences

Mehrab No. 1. Corp. v. United States (N.D. Ill. Nov. 23, 2011) deals with a legal question that touches on two interesting issues:

(1) To what extent should the law try to protect religious or linguistic minority groups from generally applicable rules that have an unusually large impact on those minority groups?

(2) To what extent should penalties be softened when the penalty indirectly affects innocent third parties, whether that might be a criminal defendant’s children or a business’s customers?

The issue in Mehrab No. 1 came up in an area I know little about — food stamp law — but the questions recur in many fields, so I thought this might be an interesting case to discuss.

Here’s the situation, as best I understand it: Food stamp recipients can pay for particular kinds of products using the food stamps, and the seller can then turn in the food stamps for real money. But if a store’s employees accept food stamps for ineligible items, the food store could be permanently or temporarily disqualified from the program, even if the store’s owners didn’t know of their employees’ misbehavior. Such a disqualification could be devastating for the store, because many stores find it necessary to accept food stamps in order to stay in business.

Because of this, a federal regulation (which, I believe, was originally created pursuant to a statutory requirement, though a requirement that has now been repealed), provides that the government “may impose a civil money penalty as a sanction in lieu of [temporary] disqualification when … the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.” So this regulation deliberately eases the penalty on the store in order to prevent harm to the store’s customers.

Now the regulation, I assume, was originally enacted to protect poor customers generally. But the question then arises: What if the store is one of many stores in the neighborhood that sell cheap staple food items, but the only one that sells halal meat (the issue in Mehrab No. 1), kosher food, Glatt kosher meat, products guaranteed suitable for Buddhist vegetarians, or products guaranteed suitable for purist vegetarians generally? Or what if it is the only store in which the clerks speak Spanish, Arabic, Cambodian, or some other language that many non-English-speaking local residents speak?

Say that there are two stores in the neighborhood whose employees have violated food stamp rules: John Smith’s Grocery, which sells ordinary food that’s much like what most other stores sell, and Mehrab, which sells halal meat that is sought by the local observant Muslim community. John Smith’s Grocery is disqualified, and no relief is available because there are lots of other “authorized retail food store in the area selling as large a variety of staple food items at comparable prices.” Should Mehrab also be disqualified? Or should it be eligible for relief, because the other food stores don’t sell halal food?

In Mehrab No. 1, the court took the view that Mehrab could prevail if no other food-stamp-accepting store “in Mehrab’s vicinity offers an equivalent variety of Zabiha Halal items at comparable prices.” The court implicitly interpreted “as large a variety of staple food items” as meaning as large a variety of the sorts of items that the customers specially want because of their felt religious obligations — not just as large a variety of staple food items generally.

To my knowledge, this is the first decision under these regulations confronting this particular question, though I also found another case dealing with a related question: Phany Poeng v. United States (S.D. Cal. 2001), which involved a store that catered to customers with particular linguistic limitations, and which rejected the hardship argument, because “[a]lthough the competing stores’ employees may not speak Cambodian, the FNS is not required to guarantee the existence of an authorized store that caters to food stamp participants of every minority language. Moreover, the Court is hard-pressed to identify a reason why a food stamp participant would necessarily have to converse with a cashier at the time of purchase.”

I’m inclined to say that the Mehrab court interpreted the regulations in a sensible way, and that looking to whether there are stores that provide as large a variety of products that are adequate to the customers’ particular felt religious needs is a sound way of reading the regulation. (I’m not as confident about Phany Poeng‘s interpretation, which reached the opposite result as to linguistic minorities, though it’s possible that both cases are correct given the regulation’s focus on “as large a variety of staple food items,” which seems to refer to the adequacy of the goods and not the adequacy of the services.) But in any case, this struck me as an interesting question that I thought I’d flag for our readers.