12 August 2013

On 31 July 2013 the Supreme Court handed down judgment in a landmark case concerning the sale of food after its 'use by' date. The judgment confirms that if any person sells food after its 'use by' date, they will have committed an offence under regulation 44(1)(d) of the Food Labelling Regulations 1996, regardless of whether the food in question is actually in a perishable state.

In 2011, Torfaen County Borough Council took action against Cwmbran-based butchers, Douglas Willis Ltd, after finding in their possession frozen meat which had passed its 'use by' date and which was intended for sale to consumers. The defendants submitted that there was no case to answer, as the council could not prove that the meat was highly perishable at the time of the alleged offence. This argument was accepted by the Magistrates’ Court, and the charges were dismissed. 

The council then appealed to the Divisional Court. The council argued that it was only necessary to show that the defendant company were in possession of food for sale which had passed the 'use by' date marked on the packaging. The defendants argued that it was necessary for the prosecution to prove that the food had been in a highly perishable state at the time of the alleged offence. The Divisional Court did not wholly accept either argument, but concluded that, on their interpretation of regulation 44(1)(d), an offence was only committed if the food was sold after a 'use by' date which it was required to have under the Regulations. Since the food was all frozen at the time of the inspection, it was not in a perishable state and therefore did not require a 'use by' date. On that basis, the Divisional Court found that no offence had been committed.

The council was granted leave to appeal to the Supreme Court. At this point, the defendants were no longer able to meet the costs of defending the appeal, and as such they were not represented at the hearing. Jonathan Kirk QC, representing the Council, therefore invited the court to consider both sides of the argument, as the case raised issues of general public importance. 

The Supreme Court found that the Divisional Court was wrong to interpret Regulation 44(1)(d) in the way that it had. It was immaterial whether the food in question was required to have a 'use by' date under the Regulations. It was simply necessary for the prosecution to show that there was a 'use by' date, and that the food was sold after that date. To read such a requirement into the Regulation would make it difficult to enforce, as there would be no way of proving whether a product had been frozen before or after the 'use by' date. This would make it impossible for consumers to know whether the food was safe to eat.

The effect of this is that those selling food products will not be able to freeze products bearing a 'use by' date and sell them after the expiry of that date, even if they have been frozen well before the 'use by' date and are not perishable. Some businesses may feel that this strict interpretation of the Regulation imposes unnecessary restrictions on sellers of food products, but ultimately, the Court’s interpretation is the only way to guarantee that frozen products are safe for consumers to eat.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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