The case of Torfaen CBC v Douglas Willis Ltd is to go to the Supreme Court next week, 9 July 2013. The case concerns the interpretation of what constitutes the offence of selling food after the date shown in a "use by" date relating to it under 44(1)(a) of the Food Labelling Regulations 1996.

It will be interesting to see whether there is a strict interpretation of the words or whether there is a need to consider the rationale for a use by date (namely the prevention of unsafe food being sold to the public).

The Divisional Court in this case held; "The presence of a use by date on food is prima facie evidence that it required a use by date, so the defendant has an evidential burden to show that it did not."

Jonathan Kirk QC and Iain Macdonald of Gough Square Chambers who will be appearing for the Appellant local authority and FSA in the Supreme Court next week presented to The Food Law Group at CMS offices and examined the issues thrown up by this case. They discussed whether the Divisional Court position represented a departure from the 'golden thread' of establishing the burden of proof in criminal cases.

However, if the Supreme Court finds that the criteria of the offence extends beyond the basic interpretation of its wording this should cause local authorities further pause for thought in their prosecutions and require them to consider, as part of that prosecution, whether there is an actual likelihood that the food constituted an immediate danger to human health.

With the advent of the Food Information Regulation 1169/2011 and draft UK Food Information Regulations 2013, subsequent interpretations of this offence will import the 'deeming' of food being unsafe if it is sold after its use by date. What constitutes "deemed" is not defined. It is therefore not clear whether this will be a rebuttable presumption or not. General Food Regulation 178/2002 that sets out food safety requirements at article 14 allows the rebuttal of a 'presumption' at 14(6); where there is evidence that unsafe food is part of a batch that the entirety of that batch is unsafe 'unless evidence is provided to the contrary.' However, this is not specifically stated in respect of 'deemed'. Nevertheless, 'deemed' is also referred to at 14(7) in respect of food being safe where it is compliant with "specific Community provisions ... insofar as the aspects covered by [those] provisions are concerned". In this instance, if a safety issue were to arise despite compliance in those areas, being 'deemed' is likely to be a rebuttable presumption.

In practice, the likelihood of a prosecution should always be reduced if food businesses are able to show enforcement officers appropriate food safety compliance; clear, substantiated hazard analysis critical control point audits, risk assessments and labelling policies that are complied with and regularly reviewed and checked. Where any prepacked supplies are received and use by dates altered, written consent for this practice must be obtained from the primary producer, any subsequent label be compliant on necessary dates and treatments and it is recommended this practice has detailed safety testing to support it. Full documented checks attesting to safety should be maintained and regularly reviewed.