Use-by dates: A summary of Torfaen CBC v Douglas Willis Ltd

February 27, 2014

1. On 31st July 2013 the Supreme Court allowed the appeal of Torfaen Trading Standards (Torfaen) in a case concerning the criminal offence of selling food after the expiry of a ‘use by’ date, under regulation 44(1)(d) of the Food Labelling Regulations 1996.

2. The Supreme Court reversed the Divisional Court’s finding that it was necessary to prove, as part of any prosecution under regulation 44(1)(d), that an individual food item required a ‘use by’ date indication by reference to the European microbiological test.

Background

3. The Respondent company processed meat products, which it sold to retailers, caterers and directly to consumers. The Appellant discovered meat in the Respondent’s freezer labelled with use by dates that had expired by periods of up to three years. The labels stated, “STORE AT CHILLED 0-5C OR FROZEN -18C”.

4. The Respondent was prosecuted for selling food with expired use by date labels, contrary to regulation 44(1)(d) of the Food Labelling Regulations 1996 (‘the FLR 1996’).1 It was common ground that frozen food is not highly perishable and therefore would not ordinarily require a use by date. The Magistrates allowed the Respondent’s submission of no case to answer on the basis that the food did not require a use by date. There was no evidence about whether it had been frozen at the
time it was labelled.

5. The Divisional Court found that the offence, which is committed by selling “any food after the date shown in a ‘use by’ date relating to it”, required proof that an individual food item was required to be labelled in accordance with the requirements of Directive 13/2000/EC (‘the 2000 Directive’).

6. These requirements (‘the European durability test’) are:

Article 3
1. In accordance with Articles 4 to 17 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the
labelling of foodstuffs …

(5) the date of minimum durability or, in the case of foodstuffs which, from the microbiological point of view, are highly perishable, the ‘use by’ date;

Article 10
1. In the case of foodstuffs which, from the microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate
danger to human health, the date of minimum durability shall be replaced by the ‘use by’ date.

Supreme Court Judgment

7. The Supreme Court unanimously reversed the judgment of the Divisional Court. Lord Toulson stated that the correct statutory construction of the strict liability criminal offence created by regulation 44(1)(d) does not require proof that the European durability test was met for each item of food.

8. The practical consequence of the Divisional Court’s interpretation of regulation 44(1)(d) was that the legislation on use by dates would become difficult to enforce. If the seller of food considers that the minimum durability indication is not correct, he is able lawfully to change the indication if he was the original labeller or if he obtains the written approval of the original labeller.

9. Lord Toulson concluded that “under regulation 44(1)(d) it is sufficient 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.” The case was therefore remitted to the Magistrates Court to be reheard in accordance with the law as stated by the Supreme Court.

EU Food Information Regulation 2011

10. It should be noted that the EU Food Information Regulation 2011 (‘FIR 2011’) has now replaced the 2000 Directive.2 It was not in force at the time the Torfaen offences are alleged to have been committed. The threshold for the application of use by dates remains the same under FIR 2011, however food with an expired use by date will be “deemed unsafe”.3

11. The implementation of FIR 2011 in the UK is currently subject to consultation.4 A draft statutory instrument has been prepared by DEFRA, which would repeal the Food Labelling Regulations 1996 completely. From 2014 the proposed position for the sale of food past its use by date is that it will be enforced through a combination of the regulation 4 of the General Food Regulations 20045 (failing to comply with a food safety requirement) and regulations 14(2) to (5) of the EU Food Safety Regulation 2002.6

12. It is proposed that food with an expired use by date will be deemed unsafe and it will simply be unlawful to sell it. The maximum penalty will therefore be increased from a fine to a maximum of imprisonment for 2 years.

13. It remains to be seen whether this new mechanism to enforce use by dates will be construed by the courts to create a simple strict liability offence. There are several potential complications, which the Supreme Court declined to consider as part of the Torfaen appeal. These issues are set out here for completeness:

(a) under the proposed regime it may be argued that the deeming provision (Regulation 24 of FIR 2011) does not apply at all, if the food did not require a ‘use by’ date. On this construction the prosecution would then need to prove that the food required a use by date in order for it to be deemed unsafe.
(b) The courts may construe the word ‘deemed’ to create only a rebuttable presumption in the context of an imprisonable penal provision. If this was the position it is difficult to predict the burden and standard of proof for the elements of the offence.
(c) The reference in regulation 24 of FIR 2011 to the food safety factors listed in regulations 14(2) to (5) of the 2002 Regulations may open the door to a general consideration of those matters as a part of the offence.

References

1. SI 1996/1499.
2. The FIR 2011 entered into force in November 2011. However, its provisions will not
apply until 13th December 2014, with the exception of nutrition labelling requirements,
which shall apply from 13th December 2016, and specific requirements concerning the
designation of ‘minced meat’, which shall apply from 1st January 2014 (Article 55).

3. “…deemed unsafe in accordance with Article 14(2) to (5) of Regulation (EC) No
178/2002” (Article 24).

4. https://www.gov.uk/government/consultations/food-information-regulations-fir-2013

5. SI 2004/3279

6. EC/178/2002