It might not always be illegal to sell food after its use by date

The food industry has long found itself in the firing line in relation to food waste.  The public and the media alike are not sure what "use by", "best before", "sell by" or any other label means and why they are different.  This confusion reportedly leads to people throwing away good food and increasing food waste.  

Earlier this month, Sainsbury's changed its advice on products from freeze "on day of purchase" to make clear that it was perfectly safe to freeze any time up to the use by date.  This change, undertaken in conjunction with WRAP, was anticipated to save up to 800,000 tonnes of food from being thrown away.

The issue is also on the EU’s agenda where the Belgium government requested this week that the usage of “Best before” be debated before the Standing Committee on the Food Chain and Animal Health (SCFCAH).  The discussion focused on the possibility of selling and the conditions in which foodstuffs with an expired date of minimum durability may be present on the market.  At the meeting, a majority of the Member States agreed that food products should not be automatically forbidden from being sold after expiry of the minimum durability date, however, the evaluation should be made on a case-by-case basis, depending on the type of food in question and other specific circumstances.   

When is a use by date, not a use by date? 

A use by date is required by law for food that is "microbiologically" highly perishable and will cause an imminent danger to human health if consumed after that date. Whereas a best before date applies to other foods and signifies the date on which the food will no longer be of the quality desired. It is an offence "to sell food after the date shown in the use by date relating to it", but not after a best before date.

Perhaps in part in response to consumer expectation, a practice built up of labelling foods many of the foods found in fresh food category with a use by date, regardless of whether or not they would become unsafe after that date.  That created situations where you could find products that were created to have a long life, such as bacon or hard cheese, with a use by date.  As it was an offence to sell a product after its use by date it also had the consequence that it this created a significant compliance problem for retailers to ensure that these products were reduced or removed from sale as they reached their use by date.

That conventional wisdom has been turned on its head by the High Court this week.  Ruling in the case of Torfean CBC v Douglas Willis Ltd [2012] EWHC 296 (Admin), the High Court found that in order for the offence to be proven that the product actually needed to bear a use by date in the first place. 

The offence: to "sell any food after the date showing in a use by date relating to it" had always been viewed as prohibiting sales of products after the use by date on the label, regardless of whether it was needed or not.  The Court took a different view based on an interpretation of the last three words: "relating to it".  

Rather than concluding that "relating to it" essentially meant "applied", it concluded that ”if the food did not need to have a use by date attached to it then any use by date label that was attached to the food would not be one "relating to the food".  A use by date label cannot in our view "relate" to a food if the food does not require that type of label to be attached to it. "

As a result the scope of this offence has just been dramatically reduced.

The High Court concluded that it is for the prosecution to prove, beyond reasonable doubt, that the food in question was:

  1. highly perishable at the time that it was delivered to the ultimate consumer or caterer and therefore needed to bear a use by date;
  2. that the defendant was selling or offering the food for sale; and
  3. at the time of the sale the use by date had passed.

The Court also indicated that in circumstances when the product has a use by date the prosecution will be entitled to rely on that as evidence that the product was highly perishable.  It would then be for the defendant to show that this was not the case.

Less enforcement in the future?

Food retail and hospitality businesses will no doubt wish to continue to operate their due diligence systems to find and remove products approaching the end of their life in much the same way as before.  However, there will be some significant reassurance that now the risk of human error in those systems resulting in a prosecution has been dramatically reduced, given that the number of products that actually need to bear a use by date is a very small percentage of those that actually do.  

For the prosecution to prove that the product actually needed to bear a use by date is potentially a high burden for it to overcome and certainly one that will require expert evidence for it to prove it beyond reasonable doubt.  Where the products bear unnecessary use by dates then this really opens defence expert microbiological safety as another route of defence.  In these austere times and with limited enforcement budgets this is likely to become cost prohibitive, meaning that only the most certain cases are pursued, which in turn could signal an end to the days of prosecutions for dozens and dozens of products being found.

The High Court has sent the case back to the Magistrates to be reheard and Prosecution has said that it is seeking to Appeal to the Supreme Court, so this may not be the end of the story and if this position remains good law then it sets the scene rather nicely for a movement towards fewer use by dates being on the shelves.  Something that may in turn have a positive impact on food waste.

Hilary Ross

Executive Partner (London) - Head of Retail, Food & Hospitality

Recognised by The Lawyer as one of the UK’s Top 100 lawyers, I advise clients on compliance and challenges across the EU in relation to products, systems and safety.