use-by-date-mnOn 9 July 2013 a panel of five justices (Lady Hale and Lords Kerr, Wilson, Reed and Carnwath) heard a test case on prosecutions for selling food after the “use by” date.  The case, Torfaen County Borough Council v Douglas Willis Ltd, went straight to the Supreme Court from the Divisional Court who had certified that it had raised a point of general public importance. On 31 July 2013 judgment was given: [2013] UKSC 59.

In 2011 Torfaen County Borough Council brought a prosecution against Douglas Willis Limited for a number of offences to the Food Labelling Regulations 1996, reg 44(1)(d).  That regulation makes it an offence where any person “sells any food after the date shown in a ‘use by’ date relating to it”. Torfaen alleged that Willis had sold frozen pigs’ tongues after their ‘use by’ date. Willis argued that because the foods were frozen when inspected by the Council they were not highly perishable and so did not, under the 1996 Regulations, require a ‘use by’ date. The date had, in effect, ceased to have any relevance. The Magistrates agreed and the prosecution failed.

On appeal by way of case stated, the Divisional Court  ([2012] EWHC 296 (Admin)) considered the following questions by the Justices

(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?”

At the request of the council, the Divisional Court certified that the case involved the following point of law of general public importance:

“Does an offence under regulation 44(1)(d) of the Food Labelling Regulations 1996 require the prosecution to prove that the label or marking bearing the “use by” date, after which the food was sold, was applied at a time when (1) the food was ready for delivery to the ultimate consumer or to a catering establishment, and (2) from the microbiological point of view it was highly perishable and in consequence likely after a short period to constitute an immediate danger to human health?”

At the hearing before the Supreme Court the respondent was not represented as it could not face the potential costs consequences as it is a small family company. The Court expressed its concern about deciding a point of general public importance in such circumstances. Rather than appoint an Advocate to the Court as might have been expected it decided to ask a member of its legal staff to prepare a note of points which might have been made on behalf of the company. This was disclosed to the Appellant who in turn invited the court to consider those points which it would have regarded as fairly capable of argument if he had been instructed on the other side. Lord Toulson, giving the only judgment in the case, commented “This was in accordance with the best tradition of the bar and we believe that it has enabled us fairly to evaluate all the arguments. Nevertheless, it is still unfortunate that the court did not the have the benefit of hearing argument on both sides.”

As to the substance of the appeal, Lord Toulson said that the Divisional Court had been right to reject the respondent’s argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under  Regulation 44 (1)(d). On the wording of that paragraph, all the prosecution had to prove was that (i) the food was in the respondent’s possession for sale (and therefore ‘sold’ within the extended meaning of that term), (ii) that the food had a “use by” mark or label ‘relating to’ it, and (iii) that the date shown had passed.  However, Lord Toulson said that to read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory scheme and the protection provided to consumers. It would enable a retailer of perishable food, which had passed its “use by” date to freeze it and then sell it without the consumer knowing how long it had been unfrozen.  Lord Toulson said that the Divisional Court’s construction of the Regulations would give rise to significantly greater practical problems and expense for enforcement under paragraph (d) compared with (a). Questions relating to when the marking of the food had been done and the state of the food at the time would be matters unknown to the inspectors and realistically might deter prosecutions.