Dominic Watkins, global lead, retail, food and hospitality at law firm DWF called the penalty 'game changing'.
"It is almost certainly the highest fine ever issued for a food safety offence and even for health and safety it counts as one of the highest total fines ever," he said. "Given the size of the fine and history of this case, I would expect that Tesco would be carefully considering an appeal.
"Like all retailers, Tesco takes food safety very seriously and has systems in place to manage this that have been approved by a regulator."
Easy to criticise
While it was easy to criticise, said Watkins, and no-one, including Tesco, would want any products to be found out of date, the company faced three 'practical maths problems'.
"Firstly there will be tens of thousands of items on sale at any given time and humans have to check for date codes. While the system should cater for human error, the sheer weight of numbers makes this a very challenging task, particularly as the stock holding is never static. Tesco accepted that something went wrong by entering a guilty plea.
"The second issue is that once you have 22 charges, if you get a separate fine for each, the fine gets very large very quickly – and even if you take the mean figure, this still amounts to a large fine relative to previous cases.
"The third problem is that Tesco's scale clearly appears to have caused the judge to dramatically increase the fine level. While this is a relevant factor, and the sentencing guideline does make clear when dealing with businesses that very greatly exceed the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence - does this case really warrant a fine greater than serious safety cases like the Alton Towers accident?"
Merlin Attractions Operations Limited, the operating company of Alton Towers Resort, was fined £5m at Stafford Crown Court on 27 September 2016 for breach of section 33(1) of the Health and Safety at Work Act 1974. The judgment followed a crash on the Smiler rollercoaster ride operated by Merlin on 2 June 2015 that resulted in 16 passengers suffering serious physical and psychological injuries. The sentence was reduced from £7.5m due to Merlin pleading guilty at the first reasonable opportunity in the Magistrates’ Court.
Birmingham City Council brought the prosecution of Tesco Stores under the Food Safety and Hygiene (England) Regulations 2013. That action followed inspections by environmental health officers (EHOs) found stores in Bournville, Rubery and the city centre, selling out of date food on several occasions.
Tesco Stores - which has its Registered Office in Tesco House, Shire Park, Kestrel Way Welwyn Garden City – pleaded guilty to 22 offences across the three stores, totalling 67 separate items, at Birmingham Magistrates Court on 21 September 2020. The supermarket chain was ordered to pay a fine of £7,560,000 and £95,500 costs, as well as a £170 victim surcharge by the court on 19 April 2021.
Complaint from member of public
According to a statement from Birmingham City Council, the first incident was at Tesco Express, 165 Linden Road, Bournville, which officers visited on 17 June 2015 after receiving a complaint from a member of the public. They found six items on display beyond their use by date.
Following discussions between the city council and Tesco, officers were invited back to do another check on 12 April 2016. They found items on display including own-brand pizza, doughballs, soup, pork belly slices, potato salad, trifle and flavoured milk out of date for between 17, four, three, two and one days.
EHOs received a separate complaint on 25 May 2017 and visited the Tesco Metro store at 2042-2052 Bristol Road South, Rubery on 1 June 2017. They found 25 items displayed for sale beyond their use by dates, including own-brand scotch eggs, Quiche Lorraine, and Little Dish (children’s meals) Chicken and Veg Risotto and Pasta Bolognaise.
Grapes had mould
On visiting the third store – Tesco Express in Carrs Lane, in the city centre – on 2 June 2017, own-brand Falafel and Houmous Wraps, Grapes and Strawberries, and Berry Medley pots were displayed past their use by dates. The grapes had visible mould.
“Supermarkets have a duty of care to ensure the food and drink they display for sale are in date and therefore safe to consume," said Mark Croxford, head of environmental health for Birmingham City Council. "However, visits by our officers and the public complaints show this is not always the case.
"The purpose of the use by date is to protect the health of the consumer. The manufacturers put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety.
There were numerous missed opportunities to check the dates on these products and remove them from display – and the fact incidents were found on several occasions, in different stores and over 14 months, was is a major concern. This case offers a warning to all retailers to ensure their stock is in date and that if found to be breaching these regulations we will take action – as we have successfully done against one of the UK’s biggest supermarket chains.”
A Tesco spokesperson said: “We’re disappointed that a small number of out of date products were found on sale in three stores in 2016/17. The safety of our customers is always our priority and these incidents are not representative of the high standards of safety and quality we expect in Tesco stores.
“We took immediate action to address this at the time and we want to reassure our customers that we have robust procedures in place to make sure that this doesn’t happen.”