Kangs Solicitor
BIRMINGHAM: 0121 449 9888
LONDON: 020 7936 6396
MANCHESTER: 0161 817 5020

Winner of the Legal 500 – ‘Criminal, Fraud & Licensing Law Firm of the Year’ – “One of, if not the best, criminal specialist firms in the country”

Our team of food safety lawyers, headed by Suki Randhawa, takes great pride in representing a wide variety of businesses in the food and hospitality sectors in investigations and court proceedings throughout the country.

Our client base varies from national food operators to niche hotels and restaurants with recent cases involving businesses in diverse locations from the Strand and Covent Garden in London to Teesside and York.

Our Environmental Health & Food Hygiene Team covers the whole of England & Wales from our conveniently situated offices in London, Birmingham and Manchester.

For an initial no obligation discussion, please call our Team at any of our offices detailed below:

We are often instructed to represent businesses facing investigation in relation to the expiry of the ‘use by date’ on food and drink products.

We have been reporting on the long running case between Birmingham City Council and Tesco Stores Limited in relation to ‘use by date’ issues and for details of our previous articles please follow the below links:

The case has finally concluded at Birmingham Magistrates’ Court this month which resulted in a record fine of £7.5 million being imposed upon Tesco.

We look at the Prosecution in more detail below.

The Investigation | Kangs Food Hygiene Defence Solicitors

An investigation was commenced by Birmingham City Council Environmental Health team into three separate Tesco stores in the Birmingham area. The investigation uncovered that the stores had on display food items which were past the ‘use by date’ declared on each product.

The first incident related to a Tesco Express store in Bournville which was visited by Birmingham City Council Environmental Health officers following a complaint from a member of the public. The store was found to have six items on display which were past the ‘use by date’.

Following this discovery, Tesco invited the Environmental Health officers from Birmingham City Council to conduct a further visit at the same store. No doubt this was intended to show that the first incident was a ‘one off’ and that the store was in fact fully compliant and only displayed food within the ‘use by dates’.

Unfortunately for Tesco, the second visit revealed even greater failings with numerous items found to be on display which were between one and seventeen days past their ‘use by date’.

Two further Tesco stores were visited, one in Rubery and the other in Birmingham City Centre. The store in Rubery had twenty five food items on display past their ‘use by date’ and the City Centre Store displayed thirteen expired products including visibly mouldy grapes.   

All three stores were visited in 2016 and 2017.

The Judicial Review | Kangs Food Safety Defence Solicitors

Tesco initially sought to defend the proceedings on the basis that it firstly, had a due diligence defence and secondly, that the items on display were not in fact ‘unsafe’ and that none of the items would have caused immediate danger to human health despite being past their displayed ‘use by date’.

Tesco relied on microbiologist expert evidence to support the contention that the food was not inherently unsafe but the District Judge at Birmingham Magistrates’ Court ruled against Tesco on the basis that Article 24(1) of the EU Food Information for Consumers Regulations 1169/2011 was not rebuttable by expert evidence to the effect that the food was in fact safe.

As a result of the District Judge’s ruling, Tesco sought a Judicial Review in the High Court which subsequently agreed with the assessment of the District Judge and the case was remitted back to the Magistrates’ Court.

Guilty Plea | Food Safety & Hygiene Regulations Defence Solicitors

Having exhausted its legal remedies to challenge the prosecution, Tesco eventually pleaded guilty to twenty two separate offences under the Food Safety and Hygiene Regulations which related to a total of sixty seven separate food items in the three stores.

Tesco submitted as part of its mitigation that forty two of the sixty seven items were out of date by a single day and maintained its stance (as supported by their expert microbiologist) that the products were all ‘safe’.

The Sentence & Record Fine | Kangs Food Hygiene Solicitors

At the sentencing hearing at Birmingham Magistrates’ Court, Tesco received a record fine of just over £7.5 million as well as a costs order of £95,000 and a Victim Surcharge of £170.

It is not yet known if Tesco will appeal the sentence. If it does the appeal will be by way of a full re-hearing of the sentencing hearing before a Crown Court.

Reaction From Birmingham City Council

Mark Croxford, Head of Environmental Health for Birmingham City Council, said:

“Supermarkets have a duty of care to ensure the food and drink they display for sale are in date and therefore safe to consume – however visits by our officers and the public complaints show this is not always the case.

The purpose of the use-by date is to protect the health of the consumer. The manufactures put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety.

There were numerous missed opportunities to check the dates on these products and remove them from display – and the fact incidents were found on several occasions, in different stores and over 14 months, was is a major concern.

This case offers a warning to all retailers to ensure their stock is in date and that if found to be breaching these regulations we will take action – as we have successfully done against one of the UK’s biggest supermarket chains.”

Our Analysis | Kangs Food Safety Solicitors

In our view there are a number of lessons to be learned from this case:

  • It is now clear that Courts will robustly apply the Sentencing Guidelines for food safety prosecutions and this is a warning shot for the ‘very large organisations’ (as defined in the Guidelines as organisations with turnover greatly exceeding £50 million) that fines will be significant and commensurate with their multi-billion pounds turnover.
  • The ‘own goal’ scored by Tesco by inviting Environmental Health officers to re-inspect the first store, when it clearly had not resolved the issues, is a warning lesson to all food retailers. This exacerbated the problem for Tesco as it had been given an opportunity to rectify the situation but had clearly failed to do so. The lesson is clear that all procedures and policies should be double checked and put through a rigorous stress test before the local authority is invited back for a re-inspection of the premises.
  • It appears that the District Judge was not impressed with the stance taken by Tesco in relation to a number of matters including:
  1. The District Judge formed the view that Tesco was reluctantly pleading guilty rather than showing true remorse and accepting culpability. It appears that the District Judge was not impressed with Tesco looking to exhaust all other legal avenues before finally pleading guilty to the offences. This detracted from the credit for ‘an early guilty plea’ that would otherwise have been given.
  2. Tesco appeared to maintain its stance regarding its expert microbiologist and maintained that the food was ‘safe’. The District Judge was not won over by arguments that visibly mouldy food was safe to eat and he found the expert evidence presented by Tesco as being significantly wide of the mark and not something members of the public would relate to.
  • The District Judge called for the Guidelines to be amended to specifically cover multi-billion pounds corporations as, currently, ‘very large organisations’ are simply and generally defined in the Guidelines as having a turnover significantly above £50 million.

How to Contact Us | Kangs Environmental Health Solicitors

Our Food Safety Team is available to assist clients throughout the country.

We have significant experience in dealing with Environmental Health teams from local authorities across England & Wales and we aim to work proactively with our clients in an effort to secure an early favourable resolution to matters.

We welcome new enquiries by telephone or email.

Our team of lawyers is available to meet at our offices in London, Birmingham or Manchester or, alternatively, we are happy to arrange an initial no obligation meeting via telephone or video conferencing.

For initial enquires please contact:

Suki Randhawa
020 7936 6396 | 0121 449 9888

John Veale
0121 449 9888 | 020 7936 6396

Amandeep Murria
0161 817 5020 | 0121 449 9888

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