The retailer was represented at Birmingham Magistrates Court over charges of selling food past its use-by date in three of its stores visited by environmental health officers on 17 June 2016, 12 April 2016 and 25 May 2017.
An initial judgement by a district judge ruled that Tesco had indeed committed a criminal act under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013, which makes it an offence to contravene or fail to comply with any specified EU provisions.
In the case against Tesco, presented before Lord Justice Hickinbottom, the judgement hinged on a link between two parts of European food law – the restriction of the sale of unsafe food and the definition of food past its use-by date as unsafe.
Article 24 (1) of the Food Information Regulations states that, after the use-by date, food will be deemed as being unsafe, as per article 14(2) to (5) of the regulation.
Schedule 1 to the 2013 Regulation identifies the requirement in article 14(1) as being a ‘requirement that unsafe food must not be placed on the market’.
“The ‘deeming’ provision in the last sentence of article 24(1), provides the critical link between use-by dates and the application of article 14 of the Food Safety Regulation, and is at the heart of this claim,” said the judgement.
“On its face, it deems food beyond its labelled use-by date to be ‘unsafe’, so that, by article 14 of the Food Safety Regulation it cannot be ‘placed on the market’.”
However, Jonathan Kirk QC, representing Tesco, argued that the use of the term ‘deemed’ in the law was not concrete and therefore greatly open to interpretation. His issue lay in the fact that while the law would deem the product unsafe, in practice the food in question was in fact not unsafe to eat.
Kirk pointed to similar cases where deeming provisions elsewhere in EU regulations were not absolute and were used more as a guideline to which regulations should be followed – such as proper food labelling – and not used for the basis of criminal convictions.
Despite this, Hickinbottom’s view was that the legislation was unambiguous. In his eyes, any food business that was responsible for placing food past its use-by date on store shelves was in breach of article 12 and was thus guilty of an office under regulation 19.
“The conclusion reached by the district judge also favours legal certainty: the words in article 24 of the Food Information Regulations clearly set out the legal consequence if food passed its use-by date is put on the market,” said Hickinbottom.
“This enables all FBOs [food business operators] to know with a high degree of certainty one (albeit not the only) set of circumstances that will give rise to a breach of article 14 and hence commission of an offence under regulation 19 of the 2003 Regulations.”