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Tesco loses legal case on meaning of foods  ‘use by’ date

Subject: Food selling and manufacturing

Source: British and Irish Legal Information Institute (BAILII)

R on the application of Tesco Stores Limited v Birmingham Magistrates' Court

and Birmingham City Council [2020] EWHC 799 (Admin

High Court, Administrative Court In Birmingham Hearing date: 17 March 2020

Between June 2015 and June 2017 Environmental Health Officers (EHO) employed by Birmingham City Council (the Council) visited three Tesco stores and found a total of 67 items on sale past their use by dates; some were Tesco own brand and some were other brands. Two of the visits followed reports by members of the public about past use by date items on sale.

EHO investigations revealed that Tesco had detailed policies and procedures regarding date code management in place, but the amount of items and the respective use by dates showed in their opinion that there was a substantial failure effectively to implement, monitor and verify them.

The Council brought 22 charges against Tesco in Birmingham Magistrates' Court, on the basis that, by displaying for sale items of food with an expired use by date, Tesco had committed the offences of placing food on the market that was "unsafe".

Tesco served an expert report by a food microbiologist to the effect that none of the foods seized by the EHOs was "highly perishable", none would cause any immediate danger to human health after a short period beyond the use by date and none was unsafe from a microbiological point of view in that, if the cooking/heating instructions were followed, that would have rendered the product safe to eat. Tesco therefore argued that none of the seized items were unsafe and consequently, it had committed no offence.

A legal issue therefore arose as to the true interpretation of the words in the relevant (EU) legislation: "After the 'use by' date a food shall be deemed to be unsafe…",  The prosecution argued that the wording created a rule of law or *irrebuttable presumption” that, once the use by date has expired, the food item in question is "unsafe". Tesco contended that the words only created a presumption that the food was unsafe which could be rebutted by expert evidence.

The District Judge in the Magistrates' Court directed that this issue be determined as a preliminary issue, because Tesco’s expert evidence would only be relevant if in order to determine whether or not the expert evidence which Tesco wished to rely on was admissible. It would only be relevant if the article 24 presumption was rebuttable. The judge held that the regulation created an "absolute presumption" that could not be rebutted by evidence that the relevant food item was not in fact unsafe.

Tesco challenged the ruling by applying to the High Court for judicial review. After fully reviewing the law, the High Court ruled that the District Judge was correct.

Comment: the case will now go back to the Magistrate’s Court for trial (unless Tesco pleads guilty. It will not be allowed to adduce expert evidence but will have to rely on the “due diligence” defence which may be difficult as the offences were committed over a two year period and many were committed after reports by customers followed by visits from EHOs.

[Original case report provided by BAILII is acknowledged with thanks. Contains public sector information licensed under the Open Government Licence v3.0. Legaleze is solely responsible for the article or summary.]


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