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Scientific evidence takes a backseat to consumer safety

  • 14 April 2020 14 April 2020
  • UK & Europe

  • Insurance & Reinsurance

Scientific evidence takes a backseat to consumer safety

Tesco Stores Limited (“Tesco”) recently ventured into novel legal waters, by judicially reviewing the decision of the Magistrates’ Court not to allow expert, scientific evidence as a line of defence in a food safety case. The crux of the judicial review resulted in the High Court’s consideration of the criminal offence for displaying items which are past their ‘use-by’ date and the defences which are available to a supermarket (or other food business operators), when such food items have failed to be removed from the shelves.

An overview of legal position historically

The offence of displaying expired items is enshrined in EU regulations which, at their heart, state that unsafe food must not be placed on the market. The rationale for this is self-explanatory; to provide a high level of protection of human life and health and the protection of consumer interests.

Highly perishable food items (such as raw meat products), from a microbiological point of view, are likely after a short period to constitute an immediate danger to human health and are therefore required to have a ‘use-by’ date clearly labelled on the packaging. Once the ‘use-by’ date has passed, such food items are deemed unsafe, in that they pose a risk of being injurious to health and unfit for human consumption, and cannot be displayed for sale.

Where an item’s ‘use-by’ date has expired, but remains on display for sale, the only defence available to a supermarket has historically been to prove that they took all reasonable precautions and exercised all due diligence to prevent this from occurring. In short, this is usually demonstrated by evidencing that there are adequate procedures in place for conducting regular, in-store date checks to remove soon-to-expire items, and that those procedures have been properly trained out to store operatives and an auditing regime is in place to ensure they are being complied with.

Tesco's arguments

Tesco sought to rely upon a constructive interpretation of the EU regulations, whereby food past its ‘use-by’ date was only deemed unsafe, but argued that this was not an irrebuttable presumption (i.e. it must be capable of being disproved with evidence). Tesco sought to rely upon scientific, microbiological evidence that the items were not, in fact, unsafe, as long as the cooking / heating instructions were followed.

Tesco also argued that if the offence were made out purely by the ‘use-by’ date expiring (without any consideration of the actual safety of the food), this would create uncertainty around food which may have mislabeled with the wrong date (either innocently or mischievously) or where a food item did not in fact strictly require a ‘use-by’ date (i.e. was not a highly perishable item), and was therefore never at any point, factually, ‘unsafe’.

The Court's findings

The Court was not swayed by the argument, determining that the wording of the legislative provisions were unambiguous; food with a labelled ‘use-by’ date which has expired is unequivocally unsafe for the purposes of the regulations.

The purpose of the regulations was consumer orientated, drafted in accordance with the precautionary principle to avoid or reduce risks by using a coherent method which is applicable to all food business operators. Where food is deemed unfit for human consumption, by virtue of an expired ‘use-by’ date, it cannot be argued by using scientific evidence that the food is, in fact, safe.

The Court went so far as to accept that, in some cases (as potentially in Tesco’s case), expired food may not adversely affect human health if consumed after the ‘use-by' date; however, the Court concluded that this was not the point of the regulations. There is a clear obligation on supermarkets to label highly perishable foods with a ‘use-by’ date and when that date is passed, that food is unsafe such that it cannot be displayed for sale.

This approach not only provides legal certainty for supermarkets as a framework for ‘use-by’ dates and the offences that will be committed by displaying expired items, but more importantly adheres to and promotes the intention behind the regulations; safeguarding the health and interests of consumers.

Conclusion

In the context of criminal offences, where scientific data is generally afforded the highest degree of evidential weight, this was a remarkably interesting judgment. The message to supermarkets is clear; ensure that you have appropriate systems in place to ensure that food items past their ‘use-by’ date are not displayed for sale. Due diligence is the only defence that is available and generally requires a comprehensive set of supporting documentary evidence in order to be successful.

While the Court has closed the door on scientific expert evidence being permissible in seeking to actively defend such food safety allegations, the Court did making passing reference to the fact that this type of evidence remains relevant for mitigation purposes, during the sentencing exercise and application of the sentencing guidelines (i.e. to determine the likelihood and level of harm).

Author: Roger Cartwright, Associate.

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