Legal briefing from the Food and Drink group
21 May 2012
According to European Commission estimates, approximately 140 million tonnes of food and garden waste are produced each year in the EU, two thirds of which is disposed of whilst still edible. It is no surprise therefore that the European Parliament is seeking to cut food waste by half over the coming years. Global poverty remains a political and economic motivation, but the harmful effect that food waste and food-packaging waste have on the environment also operates as a significant catalyst for the change.
The EU Resolution
The European Parliament has resolved:
- in order to reduce food wastage by 50 per cent by 2025, new awareness campaigns should be run at both EU and national levels to inform the public how to avoid food waste. To promote the idea of using food sustainably, the European Parliament called for 2014 to be designated as the 'European Year against Food Waste'
- that member states should improve enforcement of existing EU and national government sanitation laws that mandate recycling of bio-degradable waste
- the European Commission should set food waste-prevention targets for member states under the current waste-reduction target to be in place by 2014.
Date labelling on food
There are also domestic calls for changes to be made to food packaging to reduce confusion over 'best-before', 'sell-by' and 'use-by' labels found on packaged products. Whereas many consumers believe that food is unsafe to eat when it reaches any of these dates, it is only use-by dates that mean food is unsafe to consume. As a result, supermarkets have tended to dispose of food while it is safe to eat, leading to higher levels of food waste than necessary.
Guidance published by Defra in September 2011 advises that removing the sell-by date from food packaging would help to reduce the £12 billion worth of food needlessly wasted every year in the UK. Although not going as far as in the UK, the European Parliament has also recognised the importance that labelling plays in reducing food waste: first by including provisions in the resolution which encourage the introduction of dual-date labelling which will show both a sell-by date and a use-by date; and secondly through the European Parliament debating whether it should be illegal to sell goods after their best-before date. The majority consensus reached by member states was that such decisions should be made on a case-by-case basis, rather than imposing an outright ban.
In the recent case of Torfaen v Willis  the High Court found in favour of a departure from the conventional view that an offence is prima facie committed when a product has been sold after its use-by date. The court ruled that an offence does not arise unless the product in question would have been required to bear a use-by date because it would become unfit for human consumption after that date – a logic which counters the perceived customer expectation that all foods should have a use-by label.
The court stated that "If the food did not need to have a 'use-by' date attached to it then any 'use-by' date label that was attached to the food would not be one ‘relating to the food’. A 'use-by' date label cannot in our view ‘relate’ to a food if the food does not require that type of label to be attached to it." This ruling allows significant reductions in food waste to be made, as retailers will not be obliged to remove from the shelves products that are safe for consumption.
Waste reduction in action
Certain leading supermarkets have already got the ball rolling on food waste reduction. Asda's Love Food, Hate Waste campaign aims to raise awareness about food waste and looks to address waste levels in the UK by helping customers increase the longevity of their food. The campaign offers practical information about storing and preparing food, reusing leftover food and also attempts to debunk certain myths relating to product labelling – such as freezing advice.
Similarly, in February 2012 Sainsbury's adopted new labelling which will advise customers to freeze food as soon as possible up to the product's use-by date. It is hoped that this will discourage consumers from throwing away food that has not been frozen "on day of purchase".
Tesco has also recognised the need to assist in reducing waste by trialling new packaging that will, it is hoped, keep fruit and vegetables fresher for longer. The packaging includes a strip which absorbs the hormone which causes fruit and vegetables to ripen and then go mouldy. If successful, it will add weight to the calls for packaging advancement as a vital tool in curbing food waste. WHAT NEXT?
Calls to reduce food waste are strengthening. The British Retail Consortium announced in early 2012 that retailers have failed to meet a pledge to cut back on supply chain food and packaging waste, while the spotlight placed by the European Parliament on the issue remains bright. Both food manufacturers and retailers are likely to find their obligations become more diverse as 2025 approaches.
Nevertheless, these obligations should not be viewed as a burden. The Defra guidance and recent case law is indicative of a shift towards simplification of food labelling in the UK, with the intention of countering inaccurate consumer perceptions about food longevity. This should allow retailers to leave food on the shelf for longer, helping to reduce losses through wastage and achieve cost savings. At the same time, these companies are playing their part in the EU push for food waste minimisation.
  EWHC 296 (Admin)