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Council prosecution sees Tesco fined £7.5m+ for selling food past its ‘use by’ date

Tesco Stores Limited has been fined more than £7.5m at Birmingham Magistrates Court after pleading guilty to selling food which was past its ‘use by’ date in three of its Birmingham stores.

Birmingham City Council brought the prosecution under the Food Safety and Hygiene (England) Regulations 2013 after inspections by Environmental Health officers found stores in Bournville, Rubery and the city centre, selling out of date food on several occasions.

In April 2020 Tesco 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.

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 would go to trial.

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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.”

Tesco Stores Ltd pleaded guilty to a total of 22 offences across the three stores, which totalled 67 separate items, at Birmingham Magistrates Court on 21 September 2020.

At a hearing this week (19 April) the supermarket chain was ordered to pay a fine of £7,560,000 and £95,500 costs, as well as a £170 victim surcharge.

The first incident was at Tesco Express, 165 Linden Road, Bournville, which officers visited on 17 June 2015 after receiving a complaint from a member of the public – and found six items on display beyond their use by date.

Following discussions between the city council and Tesco, officers were invited back to do another check on 12 April 2016 – when officers found various items on display including own-brand pizza, doughballs, soup, pork belly slices, potato salad, trifle and flavoured milk, out of date for between 17, 4, 3, 2 and 1 days.

Environmental health officers received a separate complaint on 25 May 2017 and visited the Tesco Metro store at 2042-2052 Bristol Road South, Rubery on 1 June 2017 where they found 25 items displayed for sale beyond their ‘use by’ date.

On visiting the third store – Tesco Express in Carrs Lane, in the city centre – on 2 June 2017, own-brand Falafel and Houmous Wraps, Grapes and Strawberries, and Berry Medley pots were on display past their ‘use by’ date.

Mark Croxford, Head of Environmental Health for Birmingham City Council, said: “Supermarkets have a duty of care to ensure the food and drink they display for sale are in date and therefore safe to consume – however visits by our officers and the public complaints show this is not always the case. The purpose of the use-by date is to protect the health of the consumer. The manufacturers put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety.

“There were numerous missed opportunities to check the dates on these products and remove them from display – and the fact incidents were found on several occasions, in different stores and over 14 months, was a major concern.

“This case offers a warning to all retailers to ensure their stock is in date and that if found to be breaching these regulations we will take action – as we have successfully done against one of the UK’s biggest supermarket chains.”

A Tesco spokesperson said: “We’re disappointed that a small number of out of date products were found on sale in three stores in 2016/17. The safety of our customers is always our priority and these incidents are not representative of the high standards of safety and quality we expect in Tesco stores.

“We took immediate action to address this at the time and we want to reassure our customers that we have robust procedures in place to make sure that this doesn’t happen.”

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