A SNAP Violation Charge Letter from the USDA looks simple enough when you receive it from UPS. There are either specific allegations about a store visit, or a list of categories for "suspicious transactions" your store has run. In appearance, it isn't much different from what other state agencies and departments send out. But in practice, it is a completely different process and mindset on the part of the USDA.
The USDA Wants to Shut Down Your Business
In 2013, the USDA conducted a study that indicated Supplemental Nutrition Assistance (SNAP) fraud (or "food stamp fraud") was at a twenty year high. To fix this, the Department stepped up its fraud detection and prevention efforts in two areas. (1) an increase in undercover investigations and (2) an increase in utilization of the ALERT system. If you received a SNAP Violation charge letter with written transaction descriptions, then your store has been shopped by an undercover agent. If your SNAP Violation charge letter has just a list of transactions attached to it, then the Department utilized its ALERT system.
In either case, the USDA decided to adopt a "zero tolerance" policy and start permanently disqualifying as many stores as it could. Congress agreed with the Department's approach. So by law, it required the USDA to crack down on SNAP violations. Accordingly, the Department is now out to disqualify and suspend as many stores as it can.
Although most store owners are not involved in the alleged violations that occur at their store, the USDA's regulations often don't consider the owner's actions. As such, the "innocent store owner" is often disqualified simply because the USDA misunderstood their store's operations, or because a clerk violated the rules.
Understanding the SNAP Charge Letter
Retailers receive a SNAP violation letter through UPS overnight mail. Each of these charge letters is generic. The details provided on the first page of the letter include what alleged violation occurred, and disqualification the United States Department of Agriculture is interested in pursuing. These SNAP violation charges include the following types of cases. Click on the title of each section to learn more about your alleged violation.
Trafficking in SNAP Benefits
Trafficking is generally defined as an exchange of SNAP benefits for cash, drugs or weapons. Importantly, this category does not include sale of ineligible items. Some attorneys that claim to practice SNAP law do not know the difference, but it is very important. There are three types of trafficking cases:
- The first is a witnessed trafficking, which comes with specific transaction descriptions where the clerk gave cash back to the investigator.
- The second type of case involves the exchange of SNAP benefits for drugs, firearms or explosives. This most commonly comes during a criminal investigation and will have a description of the transaction.
- The third type is a data or EBT SNAP violation case. These cases include lists of transactions but no specific descriptions.
Although the USDA's Charge Letter states that you can receive a Civil Money Penalty (CMP), less than half of one percent of stores are eligible. The most common result of a trafficking case is permanent disqualification.
Indirect Trafficking in SNAP Benefits
Indirect trafficking was defined by the USDA in June, 2021 during a number of investigations. This type of violation occurs where a SNAP household purchases groceries using their EBT card, and then sells it to a SNAP retailer for use in the retailer's inventory. The Food and Nutrition Service's memorandum suggests that purchases for personal use are not against the rules.
Sale of Ineligible Items
This charge involves a store accepting SNAP benefits in exchange for ineligible items. Often, these ineligible items include plastic cups, spoons, forks, baggies and soap. More serious cases involve ineligible items like gasoline, alcohol or tobacco. A term disqualification is usually what the USDA seeks in these cases. For minor ineligible items, the Department usually seeks a six (6) month disqualification where the retailer cannot accept SNAP. More serious cases involve three-to-five (3-5) year disqualifications.
Reciprocal Disqualifications
A disqualification from the Supplemental Nutrition Assistance Program for Women, Infants and Children (also called WIC) often results in a SNAP disqualification. In these cases, the USDA will typically seek to disqualify your store either for three (3) years, or issue a permanent disqualification.
What Not to Tell the USDA
For purposes of this exercise, I will address SNAP Violation charge letters that set out a list of transactions and accuse your store of SNAP trafficking. The worst thing you can do is to immediately call the USDA. Though it is always good with state agencies to call the investigating agent to determine what's going on, the USDA works differently.
The program specialist (the person whose name and number you received in the SNAP Violation charge letter) is there to collect evidence against you. They tend to be very nice, professional people, but they will ask you questions and interpret things that you may say as admissions of guilt. Their job is to find reasons to disqualify your firm for trafficking.
Accordingly, if you call FNS about the SNAP violation and blame an employee, the USDA will use that against you. Even if you indicate to FNS that you aren't certain what happened, it's likely the agency will make a note that you aren't aware of the violations.
Finally, the program specialist is not going to only accept your response over the phone. Each specialist is told to ask you to put your response in writing and email it to them. They do this so that they can compare your statements and look for inconsistency.
What Not to Do with Your SNAP Violation Charge Letter:
- There are no conversations "off the record." Everything you tell them can/will be used against you. Typically, if you ask a program specialist to tell you what they're looking for, they will ask you to write an explanation for the transactions and send it to them. They will also tell you to send them anything that you think might help them review your transactions. None of that information is particularly useful or instructive. Accordingly, reading through our website will give you more SNAP violation advice than a telephone call with the USDA.
- They will not negotiate with you. Unlike state agencies, the Department is not willing to reduce their charge to a fine or a warning. If they sent you a letter, they want to disqualify you. Though the SNAP Violation Charge Letter lists a Civil Money Penalty, the USDA typically issues fewer than ten of those per year. Instead, the USDA wants to disqualify your store.
- Do not acknowledge that anything wrong has happened at your store. There are a myriad of legitimate reasons why their data would indicate that there's something wrong at your store when there are no violations present. Until you have the opportunity to consult with a SNAP violation attorney, or look through your own records, you can't tell if the charges are accurate. The worst thing you can do is acknowledge an inaccurate SNAP Violation charge letter. Instead, read through our website to learn more about the different violation categories.
- Don't accuse your employees of wrongdoing. This is not an area of law where telling the officer that it was someone else's fault will work. The SNAP regulations are clear that even if your parking lot attendant commits EBT trafficking, you (the owner) are still responsible. Additionally, there's a decent chance that none of your employees have violated the rules. But explanations that you were not present in the store usually are used against you.
- Seek help in creating your response. Most responses that are done by the charged store are viewed skeptically by the USDA. In one case analysis I read, the analyst stated "of course the store would deny the charges in order to keep their EBT business." There is a belief that your response contains doctored the information or is hiding something. Hiring a SNAP Violation professional can give you insight to avoid the pitfalls. If you value your EBT business, it's worth more to pay to have the cases professionally defended. Otherwise, you run the risk of losing the case because of easy mistakes.
- Don't provide false information to the USDA. If you provide false, misleading or inaccurate information in your reply, it is much more difficult to win your case. FNS program specialists are more likely to issue a SNAP disqualification if they believe you are not truthful.
Suggestions for Your Response
It is typically our legal recommendation that you hire a professional to respond to the USDA's letter. Store owners/managers who represent themselves win only 5%-10% of the time. An experienced professional, like our attorneys at Metropolitan Law Group, can significantly increase your chances of success. If you choose to represent yourself, here are some suggestions:
- You need to be a specific as possible. The EBT program specialist who is reviewing your case has never been to your store. They don't know your customers, or how they like to spend their money. The Department wants to know how you operate your store and what precautions you already have in place to prevent SNAP violations. Be sure to include as much information (and pictures) as you can in your reply.
- If the SNAP Violation charge letter accuses you of a violation, interview your employees. If it turns out that no one committed a violation, then tell the agency that.
- Don't guess about the identity of households. If the USDA sent you a data-driven SNAP Violation charge letter, there will be a list of transactions. Don't guess which household made which purchases. If you are 100% certain, then you can tell the agency. However, if you guess and are wrong the agency will assume you are lying or not credible.
- If you provide invoices for your inventory, include them for the Review Period. The review period is the date range of transactions that you see in the attachments. If you only provide a little bit here or there, then they will disregard all of them.
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