The High Court recently overturned a conviction of Douglas Willis Limited for selling food beyond a use by date.  Some are claiming that this exposes consumers to risk from unscrupulous traders.  The impact of the case is being overstated: this judgment is being misunderstood.  The adverse effect of the decision on the ability of local authorities to prevent the sale of dangerous food is being exaggerated.

Douglas Willis Limited were prosecuted for having in their possession for sale frozen pigs tongues which were in packs marked with a use by date which had already passed.  It is contrary to regulation 44 of the Food Labelling Regulations to “sell” food after the date shown in a use by day relating to it (“sell” includes having food ready for sale food).

EU Food Labelling Law, as implemented by the UK Food Labelling Regulations, requires food must to be marked with a use by date rather than a best before date if it is “from the microbiological point of view, highly perishable, and in consequence likely after a short period to constitute an immediate danger to human health.”

Douglas Willis’s defence was that the food had never needed a use by date in the first place because, being frozen, it was not “highly perishable”.  Therefore it could not be proved that they had sold food which required a use by date after the use by date marked on it.  The prosecution countered that if the product bore a use by date then it could not be sold after that date had passed, even if the product was not in fact highly perishable.

What the High Court held was that the question of whether or not the food is highly perishable has to be determined at the point in time that it is ready for delivery to the ultimate consumer or a caterer.  This would normally mean the point at which it is placed in retail packs because at that point in time it would be ready for sale.  If at that point in time the pigs tongues had not been frozen, then they would have been “highly perishable” and would have to be marked with a use by date.  In such circumstances, even if they were then frozen before the use by date, it would be illegal to sell them once the use by date had passed.

In contrast, said the High Court, if the product was already frozen at the point when it was put into a state when it was ready for delivery to the ultimate consumer or a caterer, then it would not need to be marked with the use by date in the first place because it was not at that point in time highly perishable.  In those circumstances if it was nevertheless marked with a use by date, since that use by date was superfluous it could be ignored.

The big concern that has been expressed about this decision is that it would enable unscrupulous traders to take product which has passed its use by date and freeze it, and then sell it without fear of prosecution because the local authority could not prove that the food was not frozen before it was placed in its final packs.  That would indeed be a concern if it were likely to happen, but the High Court pointed to a number of factors which make that unlikely.

First of all, the Court said that the fact that there is a use by date on the label of the food would be regarded as prima facie evidence that this food was, at the time it was ready for delivery highly perishable and so did require a use by date – after all otherwise why would someone have marked a use by date on it?  Therefore, the Court ruled, the prosecution would be entitled to rely upon the fact that a use by date label was attached to the food as evidence to support its case that the food was such that it did require a use by label and therefore that any sale after that use by date was a breach of the regulations.  The High Court went on to say that the evidential burden would therefore lie upon the defendant who had sold the food after the use by date to demonstrate that it did not in fact require a use by date at the point in time when it was made ready for delivery to the ultimate consumer or the caterer.

In short, the fact that frozen product has a use by date on it will allow the Magistrates Court to infer that the product was of a nature that required a use by label so that selling it after the use by date is an offence.  The High Court quashed the conviction of Douglas Willis Ltd but sent it back to the Magistrate for rehearing - and they may yet be convicted.