Judgment in important food law prosecution concerning “use by” dates and European regulations

April 6, 2020

Richard Barraclough QC appeared for the prosecuting authority Birmingham City Council.

The Divisional Court (Hickinbottom LJ and Swift J) today handed down judgment in Birmingham City Council v Tesco Stores Limited, an important food law prosecution concerning “use by” dates and the relationship of European Regulation 1169/2011 Article 24 and Article 14 of Regulation 178/2002.

The judgment is important in explaining the purpose of “deeming” provisions generally.

A number of cases have been adjourned pending the judgment. This case will now go to trial in Birmingham.

Article 14 provides that food shall not be placed on the market if it is unsafe. Food is deemed to be unsafe if it is considered to be injurious to health or unfit for human consumption. Article 24 provides that “In the case of foods which, from a microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health…After the ‘use by’ date a food shall be deemed to be unsafe in accordance with…” article 14.

The issue is whether the deeming provision creates a rebuttable presumption or whether it is conclusive as to the issue of safety. The Divisional Court has held that for the purpose of the regulations the deeming provision is conclusive against the FBO and cannot be rebutted by microbiological evidence.

Hickinbottom LJ rejecting the submissions of Tesco held that “… the legislative provisions are unambiguous: as a result of article 24, food that is displayed for sale, or otherwise placed on the market, with a labelled use by date that has expired is “unsafe” for the purposes of article 14 of the Food Safety Regulation, and that cannot be controverted by evidence. An FBO which is responsible for placing such food on the market acts in breach of article 14, and is thus guilty of an offence under regulation 19 of the 2013 Regulations…. In my view, (the) authorities, looked at as a whole, support the contention that, whilst not conclusive, “deemed” is indeed strongly suggestive of an assumed state of affairs that cannot be rebutted by evidence…. The deeming provision in article 24 reflects the outcome of a generic risk assessment required by the EU Regulations that, given the reasons why specific use by dates are required to be determined for and displayed on specific types of food, if such food is past its use by date it is “unsafe”. … As with many “deeming provisions”, these provisions diminish the scope for factual issues by creating a “bright line” which assists in securing the aim and purpose of the Food Safety and Information Regulations, and in turn assists in ensuring consumer safety through adopting a precautionary and risk-averse approach. … Article 24 essentially defines “unsafe” food to include that which, after its use by date, is considered to pose an unacceptable risk to those who might consume it, on a prospective assessment in relation to such a food made by the relevant FBO on the basis of the general characteristics of that food and how it might be treated before consumption. It thus avoids the need to determine, as a matter of evidence in each case, whether specific food is actually “safe to eat” in the circumstances of the particular case. If someone further down the line considers that that assessment is for any reason wrong, the scheme allows him to re-assess the risk (again, prospectively) and re-label the food; but that can only be done on the basis of (microbiological) evidence (general or specific) and on the basis that he (the re-assessor) bears responsibility for his new assessment and labelling.”

Dealing with the point arguably left open in the TORFAEN case he said: “If the wrong date is put upon food (or a use by date is put on food that does not require such labelling), then the FBO putting on that information, whose mistake the original labelling was, will remain liable for that mistake, which can be corrected by appropriate re-labelling in accordance with the Food Information Regulation regime. If someone mischievously changes an appropriate use by date, then the verification and checking procedures required by the scheme should make that a very short-term issue; and, in any event, the aim of the scheme to protect consumers means that the burden of responding to such mischief should and does not fall upon the consumer, but on an FBO. There is no evidence before us that such mistakes or mischief have occurred in practice; but, if they were to occur, then in my view, the scheme on the basis of the construction advanced by Mr Barraclough is sufficient to respond to it.”.

He concluded, “Consequently, in my view, the construction of article 14 of the Food Safety Regulation including the deeming provision in article 24, is clear: there is an obligation, falling on FBOs, to label highly perishable foods with a use by date and, when that date is passed, that food is “unsafe” such that it cannot be displayed for sale or otherwise placed on the market; and that “unsafety”, being essentially a question of definition, cannot be controverted by evidence that, by reference to some other safety criteria, the food is “safe”. Such food may be relabelled, if it is reassessed for risk; but, whilst any such process is proceeding, the food cannot be placed on display or otherwise “held for sale” (which is included in the definition of “placed on the market”….

Swift J held that, “The ordinary language meaning of the words used in article 24 of the Food Information Regulation is clear: if a use by date has passed, the food is to be regarded as “unsafe” for the purposes of article 14 of the Food Safety Regulation. Although in some circumstances, where a legislative provision says that a state of affairs is deemed to be so, that provision can be construed as meaning something to the effect of “deemed unless otherwise proved”, whether such a conclusion is correct will depend on context, and in particular on whether the conclusion is consistent with the purpose of the instrument in which the provision appears. In the context of the Food Safety Regulation and of the Food Information Regulation, taking account of (i) the clear purpose of those Regulations as explained by Hickinbottom LJ and, specifically, (ii) the premises in those Regulations for the existence of use by dates, there is no plausible basis for the conclusion that the words in issue in article 14 have any meaning short of their ordinary language meaning. Any different meaning would seriously weaken the regulatory scheme. Thus, both as a matter of ordinary language, and by reference to the purpose of the EU Regulations, the correct meaning of the words in issue in article 24 of the Food Information Regulation is that food passed its use by date is unsafe for the purposes of article 14 of the Food Safety Regulation”.

A link to the full judgment on BAILII can be found here