Giant appealed the Department's decision to the hearing examiner, who conducted a hearing on August 7, 1997. After the hearing, the Hearing Examiner found as fact that Giant had two outdated one-half gallon containers of skim milk in its shelf inventory. The Department denied recertification because of the out dated milk. Market knew the date of the inspection. There should have been no out dated milk in the store, let alone on the shelves.
Market argues that it was only two half gallons out of the whole store.
They say that it is de minimus and that the penalty outweighs the violation. The Department on the other hand argues that the line has to be drawn somewhere. To a recipient one bad carton of milk is too many. . . . . . . . Under the new Handbook, there is clearly a right to deny certification for failure to meet the criteria established. There is no de minimus argument when you are dealing with outdated food and nursing mothers and infants on formula.