Council wins Supreme Court battle over food labelling and 'use-by' dates

A local authority has won an appeal to the Supreme Court in a dispute over food labelling regulations and 'use-by' dates.

The case of Torfaen County Borough Council v Douglas Willis Limited [2013] UKSC 59 arose out of an inspection of the company’s premises in June 2011. A number of packages of frozen meat were found to be labelled with 'use by' dates which had passed.

Douglas Willis was tried on 23 charges of selling food ‘after the date shown in the “use by” date relating to it’ contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 made under the Food Safety Act 1990.

Gwent Justices dismissed the charges on 1 September 2011, accepting a submission by the respondent company that it had no case to answer because the prosecution had not proved that at the date of the alleged offence the food required a 'use by' label under the Regulations, ie that it was highly perishable and likely after a short period to constitute an immediate danger to human health. There was no evidence as to when the meat had been labelled or frozen.

Torfaen CBC appealed by way of case stated. The Divisional Court allowed the appeal, holding that the prosecution did have to show that the food had at some stage been in a state which required it to be labelled with a 'use by' date, which had passed, but not that it was in that state at the time of the offence.

The council brought a further appeal to the Supreme Court, submitting that the prosecution had only to show that the respondent was selling food which was the subject of a “use by” label displaying a date which had passed.

The Supreme Court has unanimously allowed the appeal. It held that under Regulation 44(1)(d) it was sufficient for the prosecution to prove that a defendant had food in its possession for the purpose of sale which was the subject of a label showing a 'use by' date which had passed.

As a result the case will be remitted to a different panel of justices for a rehearing in accordance with the Supreme Court’s ruling.

Lord Toulson, who gave the judgment of the court, said the Divisional Court had been right to reject the respondent’s argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under Regulation 44 (1)(d).

He said: “On the wording of that paragraph, all the prosecution had to prove was that (i) the food was in the respondent’s possession for sale (and therefore ‘sold’ within the extended meaning of that term), (ii) that the food had a 'use by' mark or label ‘relating to’ it, and (iii) that the date shown had passed.”

The Supreme Court judge said that to read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence “would seriously weaken the regulatory scheme and the protection provided to consumers”.

He added that such an approach would have enabled a retailer of perishable food, which had passed its 'use by' date to freeze it and then sell it without the consumer knowing how long it had been unfrozen.

Lord Toulson said the words ‘relating to’ in the phrase “sells any food after the date shown in a ‘use by’ date relating to it” were synonymous with ‘referring to’.

The judge added: “It denotes a factual connection rather than a legal requirement”, and simply meant that the food sold was the subject of a label with a 'use by' date.

Lord Toulson concluded that comparison with other paragraphs of Regulation 44 (1) showed that, unlike the offence in paragraph (a), there was a reason for the omission of the words ‘marked or labelled in accordance with Part II of these Regulations’.

He said: “Once food has been marked with a ‘use by’ date, the regulations protect the consumer by prohibiting the removal or alteration of the marking, except by or with the written authority of the person originally responsible for it, and by prohibiting the sale of the food after the ‘use by’ date shown.”

Lord Toulson said the Divisional Court’s construction of the Regulations would have given rise to significantly greater practical problems and expense for enforcement under paragraph (d) compared with (a).

Questions relating to when the marking of the food had been done and the state of the food at the time would be matters unknown to the inspectors. In such circumstances enforcement authorities might have been “understandably reluctant” to launch a prosecution.

This article is based principally on the Supreme Court’s press summary.