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On 20 February 2012 the High Court ruled in an important test
food labelling case. The High Court judges allowed Torfaen
County Borough Council to appeal against the acquittal of a company
selling meat products past their 'use by' date. The
case has been remitted for a re-hearing by a different panel.
Lord Justice Aikens emphasised that neither the Council nor the
company had won and the final decision is back with the
Magistrates' Court.
Douglas Willis Limited (the respondent) was cleared by
magistrates in September 2011 after frozen pigs' tongues past
their 'use by' date were found at its factory.
Magistrates ruled the company had no case to answer accepting its
plea that 'use by' dates were unnecessary as the food was
not highly perishable.
High Court judges, however, ruled the magistrates had "erred
in their approach in law" and sent the case back for a
re-hearing by a different panel.
Key points from the High Court decision
This is one of the most important food law decisions over the
past few decades. The High Court held that:
The appropriate durability indication (e.g. a 'use by'
date if the food is highly perishable) must be applied when the
food is ready for delivery to the ultimate consumer or to a
caterer;
Once applied the food label must keep its 'use by'
marking if it is subsequently frozen which would mean the food is
no longer highly perishable;
The marking will be prima facie evidence that the food
required a 'use by' date in the event of a prosecution
because the date has passed; but importantly
This can be rebutted if the defendant can show
that the 'use by' date was not
required.
Consequences
This decision is significant because it means:
It will be much more difficult to prosecute companies for
selling food past its 'use by' date (e.g. shops that
receive food from a supplier bearing a 'use by' date and
then put it in the freezer) if a defendant can persuade the court
that, by reason of the freezing, the food was no longer highly
perishable and so did not require a 'use by' date. The
evidential burden would still lie on the person who sold the food
after the indicated 'use by' date to prove this was the
case. However, a over-sticker or label providing the date of
freezing should help to demonstrate this and will be a mandatory
requirement when the new EU Food Information Regulation applies (in
2015) in any event.
It will likely create confusion for (i) companies when deciding
which durability indication to apply to the food label (i.e.
'use by' date or 'best before end' date) (ii)
companies selling the food and (iii) consumers.
This article was written for Law-Now, CMS Cameron
McKenna's free online information service. To register for
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Law-Now information is for general purposes and guidance
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articles are not necessarily comprehensive and do not purport to
give professional or legal advice. All Law-Now information relates
to circumstances prevailing at the date of its original publication
and may not have been updated to reflect subsequent
developments.
The original publication date for this article was
24/02/2012.
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