Legal spotlight - November 2020

IN TERMS of the Food Safety and Hygiene Regulations (FSHR) 2013 it is an offence to contravene or fail to comply with specified EU provisions, including the Food Safety Regulation (FSR) 2002, which lays down rules relating to the requirements of food law, food safety, presentation – or labelling, traceability and withdrawal, recall and notification. The FSR provides that food "shall not be placed on the market if it is unsafe". 

Article 14 of the FSR must be read in conjunction with the 2011 EU Food Information Regulation (FIR), which sets out the information to be included on food labelling, including mandatory provisions relating to the "date of minimum durability or the ‘use by’ date". The "date of minimum durability" is the 'best before' date and is concerned primarily with the quality of food rather than its safety. 

The FIR clarifies where a use by date, rather than a best before date, must be labelled on food:

"In the case of foods which, from a 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. After the ‘use by’ date a food shall be deemed to be unsafe…"

It is a defence to charges brought under the UK's FSHR for the dutyholder – essentially the retailer – to demonstrate that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence - the due diligence defence.

Until recently, many operators in the retail and food sectors had believed that the sale of foods past their use by date would not constitute an offence if it could otherwise be proven that the products did not pose a risk to consumer safety. 

However that belief was challenged before the High Court, which confirmed that it is an offence to offer for sale or otherwise transfer perishable food which is past its use by date, regardless of any evidence presented demonstrating the safety of the food for consumption.

The case concerned a food retailer prosecuted for displaying perishable items after their 'use by' dates over a two year period. The prosecution argued that the EU FIR creates an irrebuttable presumption that, once the 'use by' date had expired, the food was unsafe. 

The retailer disagreed. Whilst it accepted that the items had been displayed for sale with expired 'use by' dates it relied upon two defences: firstly, that the items were not, in fact, 'unsafe', and secondly the 'due diligence defence'. In support, the retailer produced a report from an expert microbiologist confirming, in essence, that notwithstanding the expiry of the 'use by' dates, the food was not unsafe. 

Both the Magistrates Court and High Court (on appeal) agreed with the prosecution – that displaying food for sale after its use by date created an irrebuttable presumption that it was unsafe – and refused to allow the expert's report to be admitted. 

The High Court said: "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. A [retailer] which is responsible for placing such food on the market acts in breach of article 14, and is thus guilty of an offence under regulation 19 of the [FSHR]."

So, a retailer will commit a criminal offence if it markets or otherwise transfers food beyond its 'use by' date. It is worth remembering that the offence relates to placing relevant foodstuffs on the market, which is given a wide definition well beyond merely display for sale. It will include other forms of transfer or distribution, whether with or without payment. Suitably robust preventative measure should be put in place. Contravention, however inadvertent, could lead to criminal prosecution and an unlimited fine.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com