prosecution for selling food after ‘use by’ date
A recent High Court case (Torfaen County Borough Council v
Douglas Willis Ltd 2012) has considered the offence of selling
food after the date shown in the ‘use by’ date relating to it,
contrary to Regulation 44(1)(d) Food labelling Regulations
1996.
A food processing company had been charged with a number of
offences alleging sale of food after its ‘use by’ date. The company
bought in meat and meat products which it then processed, packaged
and labelled for onward sale. At the time of the alleged offences,
the products in question had been frozen and were being stored in
freezers and bore ‘use by’ dates which had been exceeded.
According to the Food Labelling Regulations a food requires a
‘use by’ date if the food is highly perishable and in consequence
likely after a short period to constitute an immediate danger to
human health. Frozen foods do not require a ‘use by’ date as they
are not considered to be highly perishable, although normal
practice would be to have a ‘best before’ date. The prosecution’s
case was that any perishable item that is classed by the seller as
such and is given a ‘use by’ date remains in the same category even
if it is subsequently frozen and, consequently, the offences had
been committed.
The defence made a submission of no case to answer on the basis
that all the produce was in a frozen state at the date of the
alleged offences and that frozen goods did not require a ‘use by
date’. Consequently, the prosecution had to prove the following
three elements:
- that the food was highly perishable
- and in consequence likely after a short period
- to constitute an immediate danger to human health.
The defence submission was successful and the Magistrates Court
held that the prosecution had failed to prove the three
requirements necessary for a conviction.
The prosecution appealed to the High Court by way of case
stated, posing the following questions:
- does the offence under the Food Labelling Regulations require
proof that the food was, at the time of the offence:
- highly perishable
- and in consequence likely after a short period
- to constitute an immediate danger to human health?
- if food has been given a ‘use by’ date and then frozen so that
it is no longer highly perishable, does that ‘use by’ date cease to
have effect?
The Court held that once a ‘use by’ date has been applied then,
even if the food is subsequently frozen so that it is no longer
highly perishable, it will still require a ‘use by’ label. The
Court also held that in order to obtain a conviction for the
offence of selling a food after its ‘use by’ date, the prosecution
had to prove, beyond reasonable doubt:
- that, at the point that the food was ready for delivery to the
ultimate consumer or to a caterer, it was “highly perishable” and
so needed then, and thereafter, to be labelled with a ‘use by’
date
- the defendant was, at the time of the alleged offence, selling
the food, within the definition of “sell” (as defined in the
Regulations); and
- at the time of the alleged offence, the date on the ‘use by’
label had passed.
The fact that food being sold carries a ‘use by’ date is, on the
face of it, evidence that the food required a ‘use by’ date.
However, this can be rebutted if the defendant can demonstrate that
a ‘use by’ date was not in fact required.
As the High Court concluded that the Justices had erred in their
approach to the law, the matter was remitted to a different
magistrates’ bench to be reheard.
This judgment could have significant consequences. It will
certainly make it more difficult for Trading Standards to obtain
successful prosecutions of this offence as it will be open to the
defence to argue that it cannot be proved beyond reasonable doubt
that the food was highly perishable at the time it was sold and
thus was required to be labelled with a ‘use by’ date. This would
not be limited solely to frozen food as such a defence would be
able to be argued in many other cases as well.
The prosecution has applied for a certificate that the issues
raised in the case are ones of general public importance so that
consideration can be given to petitioning the Supreme Court for
permission to appeal.
