The First-Tier Tribunal (General Regulatory Chamber) has handed down judgment in Odysea Ltd v London Borough of Waltham Forest [2024] UKFTT 157 (GRC) in what is thought to be the first UK judgment on “raw honey”. The Tribunal disapproved national guidance published by the Association of Chief Trading Standards Officers and cited an apparent “institutional reluctance to engage with developments in [honey] manufacturing technology and practices”.
Odysea imported minimally-processed and “unpasteurised” honey from Greece which it labelled “raw honey”. The Authority issued an improvement notice pursuant to s.10 of the Food Safety Act 2010 requiring Odysea to cease using the term “raw” honey.
The Authority’s approach was based on national guidance on raw honey issued by the Association of Chief Trading Standards Officers (“ACTSO”). The Authority stated that the term “raw honey” was misleading to consumers as it suggested that the food possessed “special characteristics” which in fact all similar foods possessed (within the meaning of art.7 of the Food Information to Consumers Regulation (EU) 1169/2011). Since the Honey (England) Regulations 2015 provided strict compositional criteria for honey products (which included measures designed to restrict processing and heating of honey), the Authority argued that all compliant honey sold in England could be described as “raw”. As such, to describe Odysea’s honey as “raw” suggested that there was something special about the product, when in fact there was not.
Odysea appealed the improvement notice to the First-Tier Tribunal (“FTT”). It provided evidence of its manufacturing process, which it submitted was distinctive in nature by not employing “pasteurisation”. It also commissioned scientific tests of its honey which were then compared to the results of other honey products available on the market. The FTT held that the tests supported Odysea’s case that there were observable differences in its product which resulted from its manufacturing process.
The FTT allowed the appeal and rejected the Authority’s argument. Tribunal Judge Neville described the ACTSO guidance as “a very unhelpful document” which provided “a shaky basis” for the Authority’s case. He concluded that “Odysea’s ‘limited run, single source’ honey … would satisfy just about everyone as being raw honey …”. The word “‘raw’ … accurately conveys the lack of processing, including but not limited to heating, undergone by Odysea’s honey when compared with many others”.
He also made the following comments about honey regulation more generally:
“49. I find that the scientific and other evidence discloses a realistic likelihood that large honey producers may be routinely subjecting honey to sophisticated heating and crash-cooling methods in such a way that its HMF and diastase levels remain just within the regulatory requirements. It is plainly in their interests to do so: I can properly take notice that malleability, homogeneity and longevity are necessary and desirable qualities in food sold to supermarkets, especially for their ‘own brand’ products. It would not be surprising if, over time, producers have improved their technology, sources of honey and blend recipes.
- The evidence of Mr Payne, and the ACTSO guidance, gave me a strong impression of an institutional reluctance to engage with developments in manufacturing technology and practices, and to address whether they may put honey in breach of the separate requirement that enzymes should not be “significantly deactivated”. At the very least, the ACTSO guidance and its defence reveals a lack of understanding about pasteurisation / flash-heating conducted by industry and its effects on products.”
Members of Chambers appeared on both sides of the appeal. Robin Kingham represented Odysea, instructed by Covington & Burling LLP. Stuart Jessop represented the Authority.
The full judgment is available here.
