Legal Updates - Food Labelling

Food Law – Food Labelling – Use By – Perishable Food – Food Labelling Regulations 1996

In the recent case of Torfaen County Borough Council v Douglas Willis Limited [2013] UKSC 59, the Supreme Court held that it was sufficient for the purposes of section 44(1)(d) of the Food Labelling Regulations 1996, for the prosecution to show that a defendant has food in its possession, which has “use by” dates which have already passed.

Background

• In June 2011, Douglas Willis Limited (“DW”), which is involved in the food processing business, was visited by inspectors from the local authority’s trading standard’s department.
• The inspectors found a number of packages of frozen meat labelled with “use by” dates which had expired. As a result, charges were brought against DW under regulation 44(1)(d) of the Food Labelling Regulations 1996.

“44.—(1) If any person—

(a)sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or

…

(d)sells any food after the date shown in a “use by” date relating to it, or

(e)being a person other than whichever of—

(i)the manufacturer,

(ii)the packer, or

(iii)the seller established within the European Community,

was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food,

he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

• DW argued that that the foods did not require a “use by” date because they were in a frozen state at the time of the inspection and therefore, they were not highly perishable.
• The charges were dismissed by the magistrates and the local authority appealed to the Divisional Court, arguing that the prosecution only had to show that DW was selling food which had “use by” dates which had expired.
• The Divisional Court did not accept this and held:

that the prosecution did not have to show that the food was in a highly perishable state at the date of the alleged offence, but that it did have to show that the food had at some stage been in a state which required it to be labelled with a “use by” date and that the date had passed

• The local authority appealed.

Outcome

The Supreme Court held that:

• The prosecution only had to prove that:

• the food was in DW’s possession for sale;
• the food had a “use by” mark “relating to it”; and
• that date had passed.

• Questions around what a frozen food’s condition was like at the time of marking, which would be unknown to the inspectors, would simply complicate enforcement;
• There is no additional requirement for the prosecution prove that the food was in a highly perishable state at the time of the alleged offence under regulation 44(1)(d);
• The case was remitted for a rehearing.

For any queries on food law issues, you may contact us by email [email protected]. Visit http://www.rtcoopers.com/practice_regulatory.php and http://www.rtcoopers.com/practice_food.php. 

© RT COOPERS, 2013. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.