Food for thought

Supreme Court Main Entrance 03521C press office supplied  146x219The Supreme Court has given a definitive ruling upon the issue of the requirements of the offence of selling food after the expiry of a “use by” date. The judgment represents a welcome return to certainty in such prosecutions, writes Adam Pearson.

The accurate labelling of food is of course a matter of public concern. Where, however, the labelling of the food also impacts upon issues as to food safety, it may be thought that the public concern to ensure compliance with the labelling regime is all the more important.

It is in that context that the Food Labelling Regulations 1996 create a number of offences in relation to breaches of the Regulations. Those offences include the offence of selling food after the expiry of a “use by” date.

Where food is ready for delivery to the ultimate consumer or to a catering establishment, the Food Labelling Regulations 1996 impose requirements as to the labelling of that food. In addition to a number of other matters such food needs to be labelled with the appropriate durability indication.

The appropriate durability indication depends upon the nature of the food in question. Where food is, from the microbiological point of view, highly perishable and likely after a short period to constitute an immediate danger to human health, the appropriate durability indication is a “use by” date. In other cases, the requirement is for an indication of minimum durability – a “best before” date.

It can be seen therefore that the application of a “use by” date is only required by the Regulations where a food is likely to present a danger to human health after a short period of time, and the rationale of creating an offence to prevent the sale of food after the expiry of the “use by” date is clear.

The offence of selling food after the expiry of the “use by” date is created by regulation 44(1)(d), which provides that “If any person… sells any food after the date shown in a “use by” date relating to it… he shall be guilty of an offence”. The offence is summary-only, and carries a maximum sentence of a level 5 fine.

The offence had been widely interpreted as requiring proof only that the defendant sold (which bears an extended meaning, and includes possession for sale) food marked with a “use by” date after that date had passed.

However, in the case of Torfaen County Borough Council v. Douglas Willis Ltd, the Gwent Magistrates Court ruled that the offence required the prosecution to prove not only that the Defendant had sold food after the expiry of a “use by” date, but that at the date of the alleged offence the food was highly perishable and likely after a short period to constitute an immediate danger to human health (and that therefore the food required a “use by” date at the date of the alleged offence). Accordingly, having failed to prove that additional requirement, they ruled that the Defendant had no case to answer.

As far as the facts of the case are concerned, they can be stated shortly. Douglas Willis Ltd were manufacturers and producers of meat products. When their premises were inspected by officers of Trading Standards, the officers found a considerable number of meat products bearing “use by” dates which had expired, but which had been frozen. As they were frozen, they were not at that time highly perishable, although there was no evidence available as to when they had in fact been frozen.

In the appeal to the Divisional Court (Torfaen County Borough Council v. Douglas Willis Ltd [2012] EWHC Admin 296), the Court rejected the interpretation and reasoning of the Magistrates Court. In so doing, it rejected both the interpretations put forward by the prosecution and by the defendant, and preferred a third interpretation of the offence. It held that the prosecution did not have to show that the food was in a highly perishable state at the date of the alleged offence, as contended by the defendant, but that it was necessary to prove that the food had at some stage been in a state which required the application of a “use by” date, and that that date had passed. The fact that the food in fact bore a “use by” date was prima facie evidence that the food had required such a label at that earlier time. The offence of selling food after the date shown in a “use by” date relating to it, would therefore only be committed if food were sold after the date shown in a “use by” label which the provisions of the Food Labelling Regulations 1996 required it to have had.

In reaching the conclusion that the offence required proof that the food had required a “use by” date, the Divisional Court placed reliance on the inclusion of the words “relating to it” in the definition of the offence, saying “a ‘use by’ label cannot, in our view, ‘relate’ to the food if the food does not require that type of label to be attached to it”.

The prosecution’s appeal to the Supreme Court was heard on 9 July 2013, with judgment in Torfaen County Borough Council v Douglas Willis Ltd [2013] UKSC 59 given on 31 July 2013.

In the judgment of the Supreme Court, given by Lord Toulson, the ruling of the Magistrates Court, requiring proof that at the time of the alleged offence the food was highly perishable, was roundly rejected. The wording of reg 44(1)(d) was clear, and imposed no such requirement. The Court noted the practical consequences of such an interpretation, which would seriously weaken the regulatory regime.

Similarly, the Supreme Court rejected the interpretation of the Divisional Court. The phrase “relating to it” meant no more than “referring to it”, in the sense that it connoted no more than that the food was the subject of a “use by” date. The phrase denoted only a factual connection rather than a legal requirement. There were no contextual considerations which required the imposition of the additional requirement contended for, and indeed an additional requirement of proof that the food had legally required a “use by” date would impose significant practical hurdles to prosecutions which were not justified and could serve to defeat the legitimate purpose of the regulations.

The conclusion of the Supreme Court was that the prosecution submission was correct. The offence of selling food after the “use by” date required proof only that the defendant sold (or had food in its possession for the purpose of sale) which was the subject of a mark or label showing a “use by” date which had passed. It was not necessary for the Prosecution to prove that there was or had been any legal requirement to apply a “use by” label, simply that a “use by” label had, as a matter of fact, been applied, and that the sale (within the extended meaning) had been after that date. Such an interpretation is consistent with the plain meaning of the regulation and has the benefit of providing a coherent and practical means of ensuring that the scheme and purpose of the applicable provisions of the Food Labelling Regulations 1996 can be properly enforced.

Following the Supreme Court judgment, those tasked with the enforcement of the Food Labelling Regulations 1996 now have a clear interpretation of the relevant regulations which allows for their effective enforcement. The position is now settled – at least until the proposed repeal of the Food Labelling Regulations 1996 following the proposed implementation of the EU Food Information for Consumers Regulation on 13 December 2014. 

Adam Pearson is a barrister at 36 Bedford Row, specialising in Consumer and Criminal Law. He is a Contributing Editor to Consumer and Trading Standards: Law and Practice, with responsibility for Food Standards and Labelling. He has wide experience of Trading Standards and other Local Authority prosecutions, and can, in appropriate cases, accept instructions on a direct access basis.