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The “sale” of food with expired “use by” dates

Print publication

01/11/2013

The Supreme Court has ruled that it is sufficient, for the purposes of a prosecution pursuant to regulation 44(1)(d) of the Food Labelling Regulations 1996, for the prosecution to prove that the defendant 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.

Background

In Torfaen County Borough Council v Douglas Willis Limited [1], inspectors from the local authority’s (the Council) trading standards department visited the respondent company’s (Willis) premises, where they found a number of packages of frozen meat with “use by” dates which had passed. Willis, in the business of buying, processing and selling meats, 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 (the Regulations).

The charges were dismissed by Gwent Justices. The justices accepted that there was no offence under the Regulations, concluding that since the food items were all frozen at the time of the inspection, they were not then “highly perishable” and so did not require a “use by” date under the Regulations. The Council appealed by way of case stated, arguing that the prosecution only had to show that Willis was “selling” (within the Regulations’ definition) food which was the subject of a “use by” label displaying a date which had passed.

The Regulations

The Supreme Court’s judgment drew attention to specific Regulations, including the definition of “sell”, meaning “offer or expose for sale or have in possession for sale”, and the requirement pursuant to regulation 5 that “…all food to which this Part of these Regulations applies shall be marked or labelled with…(c) the appropriate durability indication”, being either “an indication of minimum durability” or, “in the case of food which, from a microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health, a ‘use by’ date”.

Regulation 44(1) deals with offences, with the Supreme Court referring to the offences where: “any person:

(a) sells any food which is not marked or labelled in accordance with [the Regulations]; or…

(d) sells any food after the date shown in a ‘use by’ date relating to it; or

(e) being a person other than whichever of [the manufacturer, packer or seller] was originally responsible for marking the food, removes or alters the appropriate durability indication…”

The Divisional Court’s decision

The Divisional Court 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 but that it 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, and that date had passed. The Council appealed to the Supreme Court.

The Supreme Court’s Decision

The Supreme Court found that the Divisional Court was correct to reject Willis’ 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). On the wording of that paragraph, the prosecution had to prove that (i) the food was in the company’s possession for sale, (ii) that the food had a “use by” mark or label “relating to” it, and (iii) that the date shown had passed. There were no grounds for the additional requirement that the food was in a highly perishable state at the time of the offence: this would seriously weaken the intended regulatory scheme and protection provided to consumers. In the Supreme Court’s view, such an interpretation would enable a retailer of perishable food, which had passed its “use by” date, to freeze this food and then sell it without the consumer knowing how long it had been unfrozen.

The Supreme Court disagreed with the Divisional Court’s finding that the prosecution would have to show that the food had at some time been in state which required it to be labelled with a “use by” date, noting the practical problems with this construction, particularly if the food was frozen at the time of inspection. On the Divisional Court’s construction, “questions would arise as to when the marking had been done and what had been the state of the food at the time of the marking, which would be matters unknown to the inspectors”, meaning that “an enforcement authority might be understandably reluctant to incur the expense of launching a prosecution if it were likely to become involved with issues of that kind”.

In the context of the Regulations, the words “relating to” are synonymous with “referring to”, “or, in other words, as meaning simply that the food sold is subject of a mark or label with a ‘use by’ date. It denotes a factual connection rather than a legal requirement”. The Supreme Court therefore disagreed with the Divisional Court reading a requirement for the prosecution to show that it was required that the product had a “use by” mark or label into regulation 44(1)(d).

The Supreme Court also drew the distinction between the offences set out in regulation 44. The court noted that paragraph (a) deals with the “sale of food which ought to have been, but was not, marked or labelled”, pointing out that once this food has been marked the Regulations protect the customer by prohibiting the removal or alteration of the marking (except in limited circumstances) and by prohibiting the sale of the food after the “use by” date shown.

To clarify this, the court referred to the example raised by the Divisional Court, where a “use by” label is placed on food by mistake. The retailer who purchased that food would commit an offence under regulation 44(1)(e) if he removed the label without the authority of the original labeller, and paragraph (d) would prevent the retailer from selling the product to a consumer after the relevant date had passed.

Comment

The Supreme Court appeared keen to avoid any erosion of the protection of consumers provided by the Regulations, choosing to adopt a literal view of the meaning of the separate offences created by the Regulations and emphasising the practical problems which could occur in the enforcement of the Regulations if additional meanings and requirements were read into them.

Suppliers of products which fall within the ambit of the Regulations should be aware of the Supreme Court’s ruling, the variety of offences which can be committed and the wide definition of “sell” found in the Regulations. Organisations may wish to ensure they have sufficiently robust stock-taking procedures to ensure that foods which have passed their “use by” date are disposed of as quickly after that date as possible to avoid any potential liability.

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[1] [2013] UKSC 59