Divisional Court rejects Tesco judicial review challenge over criminal offences and food offered for sale after ‘use by’ date

Supermarket giant Tesco has lost a judicial review challenge over whether it was a criminal offence for a shop to offer food for sale, or otherwise place it on the market, after its labelled "use by" date.

Birmingham City Council had brought 22 charges against the company in Birmingham Magistrates’ Court.

This was on the basis that, by displaying for sale items of food with an expired use by date, Tesco had committed an offence under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013, because it had placed food on the market that was "unsafe" in breach of article 14(1) of the Food Safety Regulation.

The prosecution rested on the premise that, by virtue of the last sentence of article 24 of the Food Information Regulation, food beyond its use by date is "unsafe" food.

Tesco accepted that all of the items were exposed for sale with expired use by dates – and, indeed, accepted that they should and would not have been on sale if their own internal procedures had been complied with – but relied upon two defences namely (i) that the items were not, in fact, "unsafe", and (ii) a "due diligence" defence under regulation 12.

In support of the former, Tesco served an expert report from a food microbiologist. Armed with this, the supermarket group argued that none of the seized items properly fell within (i) article 24 (because none fell within the condition of that provision that "from a microbiological point of view, [they] are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health"), or (ii) article 14(1) of the Food Safety Regulation (because none was, in fact, "unsafe").

Consequently, Tesco submitted, no offence had been committed.

An issue consequently arose as to the true construction of the last sentence in article 24, and in particular whether (as the city council contended) the words "After the 'use by' date a food shall be deemed to be unsafe…" creates a rule of law or irrebuttable presumption that, once the use by date has expired, the food item in question is "unsafe" for the purposes of article 24, including for the purposes of a prosecution under regulation 19 of the 2013 Regulations based on that provision; or whether (as Tesco contended) the words in article 24 only created a presumption that the food was unsafe which could be rebutted by evidence such as that of Tesco’s expert that it was, in fact, not unsafe.

District Judge Jellema held as a preliminary issue that article 24 created an “absolute presumption” that could not be rebutted by evidence that the relevant food item was not in fact unsafe.

The trial was stayed pending the determination by the Divisional Court of Tesco’s judicial review challenge.

In Tesco Stores Ltd, R (On the Application Of) v Birmingham Magistrates' Court [2020] EWHC 799 the Divisional Court rejected Tesco’s challenge, meaning the case will now go to trial.

Lord Justice Hickinbottom said: “In my view, the legislative provisions are unambiguous: as a result of article 24 [of the Food Information Regulation], 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 [Food Business Operator] 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.”

Lord Justice Hickinbottom said European food law required the prospective evaluation of risk: “as a matter of precaution it considers that, where foods are highly perishable, the risk to human health is such that after a particular date they should not be used (hence 'use by' date). In order to give effect to this precaution, article 14 of the Food Safety Regulation read with the article 24 deeming provision, prohibits food past its use by date being ‘placed on the market’, i.e. it must not be displayed for sale, or even held for the purposes of sale or other form of transfer even free of charge.....

“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’.”

The judge said that, in context, there was nothing either odd or objectionable in this approach. “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.”

Lord Justice Hickinbottom continued: “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.”

The judge said that, on any view, the meaning of regulation 19 of the 2013 Regulations was “clear beyond any doubt – it makes a breach of article 14 of the Food Safety Regulation a criminal offence – and for that purpose it is clear (by reason of article 24) that food beyond its use by date is unsafe.”

Lord Justice Hickinbottom also said that, in his view, the construction of article 14 of the Food Safety Regulation including the deeming provision in article 24, was 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’,” he said.

“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’.”

The judge concluded that, subject to any available defence (such as due diligence) it was a criminal offence for a shop to offer food for sale, or otherwise place it on the market, after its labelled use by date.

Mr Justice Swift agreed that Tesco’s claim should be refused for the reasons given by Hickinbottom LJ.

He said: “The District Judge was correct to conclude that the expert evidence that Tesco wished to rely on was inadmissible: the food in issue was unsafe for the purposes of the charges brought because it had passed its use by date….

“[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.”