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contributed, it would have done so. In this case, petitioner
deliberately overproduced its private label bread so to protect its
stores against the possibility of empty shelves. We do not believe
it should be penalized for doing so.
The parties focus mainly on the characteristics of the donated
bread. Was there something about the 4-day-old bread that made it
unsalable in petitioner's stores at full retail price? Petitioner's
bakery delivered bread to the stores every day except Wednesdays and
Sundays. Any unsold bread was removed from the shelves at the
beginning of the fourth day after delivery, except for bread
delivered on Thursdays, which was removed on Mondays.
The bread wrappers were closed with color coded Kwik Loks
indicating the so-called "pull date." Each delivery day of the week
had its own color code except for Thursdays and Fridays. For both
of these days, white Kwik Loks were used indicating a Monday pull
date for both. While the white Kwik Loks for bread delivered on
Thursday and Friday bore different date codes, the date codes were
significant only to someone deliberately seeking to distinguish
between Thursday and Friday bread. The date codes were of no
significance to the store merchandisers, who relied on the colors on
the Kwik Loks to determine pull dates. (The date codes could
presumably have had significance to the store operators if week-old
bread somehow got scrambled with fresh bread; e.g., the date codes
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