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expected to be sold. In fact, store orders exceeding actual
sales were in the 6 percent range during the years in issue.
Petitioner's in-store employees placed the newly delivered
bread either on the store shelves or in the stock room. If the
bread were placed in the stock room, petitioner's employees later
placed it on the shelves. Petitioner's bread shelves are
generally 20 inches deep. In the front part of the shelf, a
store's merchandisers typically stacked loaves of bread two-high,
with the label, or "gusset," end facing out, and the date coded
Kwik Lok facing in. In the back part of the shelf the loaves
were also stacked two-high, but in this case the loaves were
stacked parallel with the customer aisle. The older bread would
be placed on the top layer; the newer bread on the bottom or in
the back. Thus, the customer would have access to the oldest
bread first, unless he/she deliberately "dug through" and "read
the codes" to find the newest bread. A customer could buy a loaf
of petitioner's bread on the third or fourth day after delivery,
take it home, put it in a bread box or leave it on the counter
for a week to 10 days, and still have a good, edible product.
The customer could further extend the life of the bread by
freezing it.
Bread that sits on the store shelf for 5 days does not lose
nutritional value or taste, but does lose moisture, so the bread
firms up a little bit, losing some "squeezeability." During the
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Last modified: May 25, 2011