"Use by" dates strictly applied

Posted: 28th August 2013

In a case of enormous significance to the food industry, the Supreme Court has decided that anyone in possession of food for sale on which the ‘use by’ date has expired is committing a criminal offence, even if the product has been frozen and therefore cannot be considered highly perishable or a risk to human health.

sell by dateA company had faced 23 charges under the Food Labelling Regulations 1996 in respect of frozen pig tongues which had passed their ‘sell-by’ date. The charges were initially dismissed by magistrates who found that the company had no case to answer.

In the absence of any evidence as to when the meat had been labelled or frozen, the magistrates had found that the local authority prosecutor had failed to prove that, at the date of the alleged offences, the goods were highly perishable or likely, within a short period, to constitute an immediate danger to human health.

In allowing the local authority’s appeal and remitting the case for reconsideration by the magistrates, the High Court had held that, although prosecutors had to show that the meat had at some stage been in a state which required it be labelled with a ‘use by’ date, which had passed, it was not necessary for them to prove that it was in such a state at the time of the offence.

The local authority appealed further to the Supreme Court and successfully argued that, in order to prove that an offence had been committed, prosecutors had only to show that the company had food in its possession for the purpose of sale which was the subject of a label showing a ‘use by’ date which had passed.

Upholding the local authority’s interpretation of the regulations, the Court noted that to read into them a requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory regime and the protection provided to consumers. The Court observed that such a requirement would enable a retailer of perishable food which had passed its ‘sell by’ date to lawfully sell it without the consumer knowing how long it had been unfrozen for.

The regulations prohibited the removal or changing of ‘use by’ dates without the written authority of the original labeller and the Court noted that the company’s interpretation would give rise to significant practical problems and expense for regulators and might well deter prosecutions in the public interest.