Tue, 14 Apr 2020
This was the legal question posed to the High Court by a large national retailer in March 2020.
Consumers might argue that in circumstances where food has been given a “use by” date which has since past then shoppers should be entitled to expect that food to not then be sold and for retailers to be held accountable if it is. Certainly, that view is consistent with the stated objective of the European Regulation prohibiting the sale of “unsafe” food in Member States that food law should provide “… a high level of protection of human life and health and the protection of consumers’ interests …” In handing down its judgement on Tesco’s application for judicial review on the 6th April in R (on the application of Tesco Stores Ltd) v Birmingham Magistrates Court  EWHC 799 (Admin) (the “Tesco Case”) the High Court has now clarified the legal position.
When should “use by” dates be applied to food?
Guidance from DEFRA and the FSA provides as follows:
“For those foods which are highly perishable from a microbiological point of view and are in consequence after a short period of time to pose an immediate danger to health, a “use by” date must be used...”
That wording is consistent with Article 24(1) of the Food Information Regulation (Regulation (EU) No 1169/ 2011) which further provides that after the expiry of a “use by” date the food shall be deemed unsafe in accordance with Article 14 of the Food Safety Regulation. Part II of the DEFRA guidance then proceeds to set out the principles that should be considered in applying date marks to food which include whether any microbiological changes in the food could result in it becoming an immediate danger to human health and whether the food is sold already “ready to eat” or (for instance) requires cooking.
How are “use by” dates currently enforced?
Article 14(1) of Regulation (EC) No 178/2002 (the “Food Safety Regulation”) requires that unsafe food must not be placed on the market. The concept of placing food on the market is given a wide definition going beyond merely displaying it for sale in a shop to include simply holding it also. Article 14(2) provides that food is “unsafe” if it is injurious to health or unfit for human consumption whilst Article 14(3) adds that in determining whether any food is unsafe, regard shall be had:
(a) to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and
(b) to the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods.
In England, Regulation 19(1) of the Food Safety and Hygiene (England) Regulations 2013 (the “2013 Regulations”) makes it an offence for an individual or organisation to fail to comply with specified EU provisions of which Article 14(1) of the Food Safety Regulation is one. The penalty for falling foul is an unlimited fine and/ or (for individuals) up to 2 years imprisonment.
The Tesco Case
This case arose out of visits by Environmental Health Officers (“EHO’s”) from Birmingham City Council (“BCC”) to Tesco stores in the city between 2015-17. Tesco was charged by BCC with 22 offences alleging separate breaches of Article 14(1) of the Food Safety Regulation contrary to Regulation 19(1) of the 2013 Regulations. Ten of those charges related to a single store at which an EHO had found six items on display with an expired “use by” date during an initial visit in June 2015. The same EHO later returned to the store in April 2016 when she found a further 29 items in chillers on display for sale but with expired “use by” dates. In May 2017, responding to a complaint from a customer, the same EHO visited another Tesco store in the city where she found 25 items on display in chillers resulting in a further eight charges. Finally, in June 2017 a different EHO visited a third Tesco store in Birmingham where she found a further 13 items on display after their “use by” dates had expired resulting in the final 4 charges.
All 22 charges went before a District Judge at Birmingham Magistrates’ Court. Tesco accepted that all of the items had been exposed for sale with expired “use by” dates but relied upon two defences in that (1) the foods were not unsafe; and (2) the due diligence defence applied.
Tesco served an expert microbiology report in support of its case that the foods had not been unsafe notwithstanding the expiry of their given “use by” dates. The author of the report concluded that (1) none of the foods had been highly perishable; (2) none would cause any immediate danger to human health after a short period beyond the “use by” date; and (3) if the relevant cooking/ heating instructions were followed then that would have rendered the foods safe to eat. Tesco argued, therefore, that none of the foods fell within either Article 24(1) of the Food Information Regulation or Article 14(1) of the Food Safety Regulation so that no offences had been committed. BCC argued that Article 24(1) creates an irrebuttable presumption that, once the “use by” date had expired, the food was unsafe.
The District Judge directed that the dispute between the parties should be dealt with as a preliminary issue to determine whether the expert report should be admitted because it could only be so if the Article 24(1) presumption could be rebutted. The District Judge proceeded to rule that Article 24(1) did create an absolute presumption that could not be rebutted thereby excluding the expert report. Tesco subsequently issued judicial review proceedings against that ruling and the trial on the remaining due diligence issue was stayed.
In the High Court, Hickinbottom LJ and Swift J refused the application for judicial review of the District Judge’s ruling. Hickinbottom LJ held (see paragraph 48) that, “… as a result of article 24, 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.” He continues (at paragraph 60) that this “… 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.” In dealing with Tesco’s submissions concerning the effect of such a strict application upon cases in which foods have been labelled with the wrong “use by” date, Hickinbottom LJ answered (see paragraph 61) that it was the food business putting on that information, whose mistake the original labelling was, which would remain liable. Any such mistakes could later be corrected by appropriate re-labelling. Verification and checking procedures required of food business operators should identify any mischievous changes to an appropriate “use by” date. Finally, he rejected any suggestion that the availability of the hygiene enforcement notice procedure as an alternative to prosecution made, “… the criminalisation of a breach of article 14 read with article 24 disproportionate or the apparent construction of article 24 other than true.”
Impact for food business operators of the ruling
Following the Tesco case, therefore, it is now clear that a shop does commit a criminal offence where it offers food for sale after its “use by” date. If the given date is wrong (or the food did not require a “use by” date in the first place) then the retailer must re-label it in accordance with the Food Information Regulation regime. To do otherwise risks the retailer being prosecuted for the offence of placing unsafe food on the market where they continue to display or even hold it for sale with the consequences being an unlimited fine or even imprisonment for the very worst individual offenders.
The separate due diligence defence remains available to be argued in these cases and it remains to be seen if Tesco will do so when the Birmingham Magistrates’ Court proceedings resume.
A copy of the Tesco Case judgement is available here.
Chris Hopkins is a member of the Regulatory Group at No5 who regularly prosecutes and defends in food hygiene and other safety related proceedings.
 DEFRA (Department for Environment, Food and Rural Affairs) and FSA (Food Standards Agency) Guidance on the Application of Date Labels to Food (September 2011).