SNAP Trafficking Attorney: Retailer Response
So, you have a SNAP Violation Charge Letter, and hopefully you’ve read Part 1 of this guide. Now that you understand what the USDA is accusing you of, and what they’re using to accuse you, it’s time to figure out your response.
I’ll be blunt: on average you have a 10% chance to win this on your own. Those aren’t my numbers, that’s what the Department tells me. Ten percent chance to do this right and convince the Department your store didn’t violate SNAP regulations. This is easier to do with an attorney (and specifically a firm like ours that do this all day every day), but it’s not impossible to do on your own. Just improbable.
I don’t tell you that to scare you, though it should scare you. That’s the reality of the situation. We have a number of stores that call us after they tried to respond to the Charge Letter on their own. By that point, their store has lost its EBT machine, and it’s very difficult to figure out where the response went wrong. We struggle to fix those cases where the store has improperly responded, or have said something that made the case harder.
Moral of the story, take this seriously and hire an attorney as soon as you receive the letter.
What a SNAP Trafficking Violation Response Should Have
When we start to prepare a SNAP violation response, we’re looking to do two things: (1) we want to identify the Department’s confusion and questions about your store; and (2) answer the questions the Department doesn’t know it has. This is more difficult than it should be. Unfortunately the Charge Letter doesn’t give you much information to respond to. But, based upon the patterns, you can tell where the Department’s biggest concerns are with your store.
There are two areas of concern that we always address. The first is how does your store handle the transactions that were contained in the SNAP violation Charge Letter? The second is what does your store’s inventory look like? Though these considerations aren’t set out in the regulations, they are important to your SNAP violation case.
SNAP Transaction Logistics
All six of the SNAP trafficking violation transaction categories involve questions about how your store physically transacts business. Some of these questions involve timing: how can the transactions happen so quickly? We have taken a number of depositions of SNAP personnel and officers, and the uniting theory that they have is that you cant conduct fast transactions without a scanner and a conveyor belt. So, often we have to explain the logistics. How does the food get from the shelf to the counter? How does it get rung into the register? Who bags it? How do the participants carry it out the door?
Some of these answers are simple enough to give, but depending on your program specialist, they may require more. Different program specialists have pet questions, like “how many people are in the store during these transactions?” Or, “how do customers know that you have carts?” Unless you know which questions your program specialist specifically has, the best practice is to try to be as thorough as possible.
SNAP Inventory Contents
At some point within the last 45-60 days before you received the SNAP violation Charge Letter, there was an on-site inspection conducted by the USDA where they came and took pictures of your store. At the same time, they filled out a survey that identified the contents of your inventory. Part of the survey was to ask you what the highest priced items in your store were. This is the information they used to determine whether or not your transaction sizes were reasonable.
Often, we find that our clients didn’t mention bulk pricing (like 12 packs of soda, cases of energy drinks, etc.). Instead, the highest listed item is $6.99 because that is the highest single item that the store sells. When we represent our clients, our goal isn’t to simply list the highest priced items. Instead, we identify what the participants want to purchase the most, and we determine what some of the most popular items are – and why.
Now, we have access to government studies and data to support our arguments. However, the most important part of this response is what you (or the store clerks) actually see happening every day. Sometimes participants will binge-spend their benefits, buying a hundred dollars of candy, soda and snacks. Sometimes, they buy food for two or three other people. Sometimes they like to buy cases of Red Bull or monster. In truth, it varies from store to store, but your explanation here must be supported by sales receipts, invoices or something else that supports your argument.
A lot of what we do at Metropolitan Law is confidential. We represent hundreds of stores at any given point in SNAP violation defense cases, and with that comes a wealth of information about the industry and the Department. Our responses aren’t like most other firms, and most of what other firms do is pattern their practices after ours.
So, hear me when I say that there is no magic formula to responding to a Charge Letter. Our practice is to present the most complete picture as we can, and treat our clients’ stores independently. We use data and studies, as well as our knowledge of the different USDA personnel (and our relationships with them) to try to present the most important information that they are looking for.
With respect to our clients: every store owner I represent has my personal cell phone number. We represent clients across 49 states and one U.S. Territory, which means that I travel to my clients, and we schedule meetings at our client’s convenience. There is nothing more important to us than our clients’ stores, and we fight hard in every case.
Next up in our guide is a breakdown of each of the transaction categories.