Supreme Court to hear key case on food labelling and 'use-by' dates

The Supreme Court has agreed to hear a key case on food labelling and ‘use-by’ dates that is seen as of major importance for both regulatory authorities and the food processing and retail industry.

A panel comprising Lady Hale, Lord Clarke and Lord Reed gave permission for a hearing in Torfaen County Borough Council v Douglas Willis Ltd, which concerned the correct construction of Regulation 44(1) of the Food Labelling Regulations 1996.

The regulation deals with offences and penalties for contravention of the food labelling requirements set out in the 1996 Regulations.

Regulation 44(1) states that any person who “sells food after the date shown in a ‘use by’ date relating to it” is guilty of an offence.

The council, Torfaen, had laid an information against Douglas Willis Limited, which buys in meat and meat products after processing, packaging and labelling.

The information contained 74 charges under Regulation 44(1). The Justices heard the case on 1 September 2011. Torfaen withdrew 43 of the charges, leaving 31 to be dealt with.

Counsel for Douglas Willis Limited successfully made a submission of no case to answer after the prosecution case. As a result all 31 charges were dismissed.

The Justices were asked to state a case, which they did on 2 November 2011. The questions posed for the High Court by the Justices were:

• "(a) Does the offence under Regulation 44(1)(d) of the Food Labelling Regulations 1996 require proof that the food was, at the time of the offence: (i) highly perishable;
(ii) and in consequence likely after a short period;
(iii) to constitute an immediate danger to human health?
• (b) 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?"

Lord Justice Aikens, who heard the case in the High Court with Mr Justice Maddison, ruled that in order to obtain a conviction of an offence under Regulation 44(1)(d), the prosecution had to prove, to the criminal standard:

1. 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;
2. the defendant was, at the time of the alleged offence, selling the food, within the definition of "sell" in Regulation 2; and
3. at the time of the alleged offence, the date on the 'use by' label had passed.

“As noted above, the fact that food is, when being sold, labelled with a 'use by' date must be prima facie evidence that the food required to be so labelled in accordance with Regulations 2, 4 and 5,” the judge said.

“If food is so labelled when being sold, then there would be an evidential burden on the defendant to demonstrate that the label had not, in fact, been required.”

On the second question (question b), Lord Justice Aikens said the answer was no. “If food requires a 'use by' label at the point at which it is ready for delivery to the ultimate consumer or caterer, then it must be labelled with a 'use by' date at that point,” he said.

“If the food is subsequently frozen, it does not cease to require to have a 'use by´ label attached to it. If such food is subsequently sold (within the definition in Regulation 2) after the 'use by' date, there will be an offence under Regulation 44(1)(d).”

Lord Justice Aikens said the Justices had erred in their construction of the Regulations. The court therefore ordered the matter be remitted to a different panel of Justices to rehear the matter.

He pointed out that it “does not follow that either the appellant prosecution has won or that the respondent has won this appeal”.

The case will now go before the Supreme Court at a date to be confirmed.