The prosecution of a multi-national supermarket before Birmingham Magistrates’ Court in 2019, relating to alleged offences contrary to the Food Safety & Hygiene Regulations 2013, to which the defendant pleaded ‘not guilty’, has resulted in a Judicial Review, the outcome of which could have far reaching consequences.
Suki Randhawa of Kangs Solicitors outlines the important issues.
The Circumstances | Kangs Regulatory Solicitors
- On 12th April 2016 Environmental Health Officers attended one of the supermarket’s stores in Birmingham and discovered ten items being offered for sale which displayed ‘use by dates’ which had expired.
- Accordingly, prosecution proceedings were commenced upon the basis that such items were ‘unsafe’ for consumption.
The Relevant Law | Kangs Food Safety Law Advisory Team
The EU General Principles of Food Law and Food Sales Regulations state:
Regulation 178/2002 – food should not be placed on the market if it is ‘unsafe’.
Article 14(2) – deems food to be ‘unsafe’ if it is injurious to health or unfit for human consumption.
Articles 14(3) – (5) – various factors are to be taken into account in determining whether any food is ‘unsafe, injurious to health or unfit for human consumption’.
The EU Food Information for Consumers Regulations 1169/2011 provides:
‘In the case of food 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 minimal durability shall be replaced by the ‘used by’ date. After the ‘used by’ date a food shall be deemed to be unsafe in accordance with Article 14(2) – (5) of the EU Food Safety Regulations’.
The Defence Relied Upon | Kangs Food Safety Solicitors
Having accepted that the items showed expired ‘use by’ dates, the supermarket maintained that the following defences were available:
- due diligence
- the items were not in fact ‘unsafe’.
The Important Considerations | Kangs Health & Hygiene Food Safety Team
- Expert evidence was relied upon from food microbiologists maintaining that the food was not unsafe and that none of the items would have caused immediate danger to human health for a short period of time after the expired date.
- A preliminary issue to be determined was whether the second defence, referred to above, could be put forward, whether the expert evidence was admissible and whether Article 24 created an irrebuttable or rebuttable presumption of unsafety.
- The District Judge held that Article 24 was irrebuttable and could not be rebutted by expert evidence to the effect that the food was, in fact, safe.
- This ruling is now subject to Judicial Review and the decision of the Higher Court as to whether this ruling is correct or not is awaited.
- This issue is one of extreme importance for the food industry, far beyond the immediate prosecution involving the ten items complained of, as it encompasses not only Public Safety issues but also practical operations for food suppliers and could result in re-thinking the use of food that previously would have been destroyed on health grounds.
How Can We Assist? | Kangs National Regulatory Solicitors
It is important for any business or individual facing any situation which may have a criminal implication to seek expert legal advice at the earliest possible stage.
If you have any issues and would appreciate some expert and robust advice please do not hesitate to contact our Team through one of the following who will be happy to guide you: