Food safety’s watershed moment – retailer on receiving end of highest recorded food safety fine for the sale of food past its use-by-date

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In April 2021, Tesco Stores Limited was fined £7.56 million in Birmingham Magistrates Court for selling food past its use-by-date. The fine, followed a guilty plea in respect of 22 charges under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 (2013 Regulations). The offences related to own brand and third party branded products which remained on sale past the marked use-by-date at three different stores. The prosecution arose out of an investigation by Birmingham City Council’s Environmental Health Department following the receipt of complaints from members of the public.

Tesco had previously sought an application for judicial review on the issue of whether expert evidence in relation to the substantive ‘safety’ of the food was admissible.  Tesco had accepted that it had items displayed for sale past their use-by-date but that such items were not unsafe on the basis of expert evidence which attested to the fact that the food would in fact have been safe to eat. The District Judge at first instance had held that such evidence was not admissible finding that there is an automatic presumption that food past its use-by-date is unsafe and expert evidence could not displace such a presumption.

Under regulation 19 of the 2013 Regulations it is an offence to fail to comply with specified obligations under European Law (which has subsequently been retained post Brexit) and this includes placing on the market food that is unsafe, which must be read in conjunction with other relevant food law which sets out the information to be included on food labelling, including mandatory provisions relating to the ‘use-by’ date for foods that are highly perishable and likely after a short period to constitute an immediate danger to human health. After the ‘use-by’ date such a food will be deemed unsafe.

Why does the case matter?

  • The case confirms that food past its use-by-date will be unsafe and placing on the market such foods will constitute an offence to which, if charged, a defendant would need to rely on a due diligence defence. This in itself is significant in the context of large retailers and food businesses who largely rely on employees to manage vast amounts of dynamically changing stock.  It is highly likely that the predicate offence (i.e. the sale or holding for sale of food past its use-by-date) is not an exceptionally rare occurrence across the country.
  • The fine is a cautionary tale (or perhaps more accurately a reminder, given the trend for fines in relation to regulatory breaches) that the Sentencing Guideline for health and safety offences, corporate manslaughter and food safety and hygiene offence (Guidelines) can lead to high fines and for organisations with turnovers in the hundreds of millions, such fines can be very significant. Cases like the Tesco one will often relate to multiple products and an offence will be committed in respect of each product. On this very basis, for those convicted, fines can escalate very quickly.
  • The total fine handed down to Tesco exceeded that of the fine for the highest fine in relation to breaches of health and safety law sentenced under the Guidelines which remains the £5 million handed down to Merlin Attractions following the well-publicised incident at Alton Towers.  This also puts the fine above arguably more egregious breaches of health and safety culminating in a fatal accident. This may set the benchmark for both food safety and hygiene and health and safety offences for other large organisations. On this basis, it is very possible that arguably more ‘serious’ food safety failures with more severe outcomes (e.g. undeclared allergens or food sold with contaminants/foreign bodies) may attract even more significant penalties.
  • For retailers and other food businesses, this case is a salutary reminder of the importance of putting in place robust systems and training as well as pro-active monitoring and auditing of those procedures to ensure that out of date food is not placed on the market.