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New case suggests use by labels are past their sell by date, by Dominic Watkins, DWF senior associate, Regulatory

The amount of information on food packaging is turning the average shopper’s trip to the supermarket or convenience store into a confusing mess of nutritional messaging, branding and use by information. This confusion, particularly with the difference between ‘sell by’, ‘use by’ and ‘best before’ dates, is contributing to millions of tonnes of food being wasted every year in the UK. Dominic Watkins, senior associate in DWF’s regulatory team, looks at how the High Court’s recent decision Torfaen CBC v Douglas Willis Ltd is set to change the way food is labelled in Britain, which could in turn reduce food wastage.

The finger of blame
In the UK, the astonishing level of food waste has been highlighted in recent years, often with the blame being laid heavily on the food industry itself. This is perhaps unsurprising as supermarkets feel obligated to remove products that are still edible from the shelves just because they have reached their sell by or best before date.

However, the industry is starting to change. Supermarkets are developing innovative strategies to tackle the issue, from educating the general public on food label terminology to changing the freezing advice on its products. For example, Sainsbury’s recently changed its labelling to make it clear that food can be frozen at home up until its use by date. This has been undertaken in conjunction with Waste & Resources Action Programme (WRAP), and is predicted to save up to 800,000 tonnes of food from being wasted every year.

Troublesome terminology
One of the biggest causes of food waste within the UK is confusion around the basic food labels ‘best before’, ‘sell by’, and ‘use by’. A lack of understanding means millions of consumers believe that food is unsafe to eat when it reaches any one of these dates, when in fact it is only ‘use by’ dates that are designed to show that food has become microbiologically unsafe to consume, and poses imminent danger to human health. As a result, it is only once the ‘use by’ date has passed that a shop will commit the offence of selling "food after the date shown in the use by date relating to it".

Conversely, best before labels are used by manufacturers as a guide to show consumers how long the product will be considered to be ‘at its best’, while ‘sell by’ dates are intended simply as a guide for shop workers. While both ‘use by’ and ‘best before’ dates are required by law to indicate a product’s durability, many argue that ‘sell by’ dates should be scrapped entirely.

But what about quality?
The European Parliament recently debated whether it should be illegal to sell goods after their best before date. The outcome was a majority agreement among Member States that such decisions should be made on a case-by-case basis, rather than imposing an outright ban. The European Parliament has requested further information which may lead to legislative changes in due course.

Increasingly, manufacturers have for a number of years been meeting a perceived customer expectation that all foods should have a use by label. This is leading to a vast number of products on the shelves being marked with use by dates when they don’t actually require them.

This increased number of use by dates on the shelves has led to a rise in the number of retailers being prosecuted for selling food after its use by date when in fact the food was still perfectly sound. The judgement in Torfaen CBC v Douglas Willis Ltd addresses this issue.

Torfaen CBC v Douglas Willis Ltd
In Torfaen v Willis, the High Court took a step away from the traditional view that an offence is committed when a product has been sold after its use by date, irrespective of whether it required the use by date in the first place. Instead, it was ruled that in order for an offence to be proven, the product in question actually needed to bear a use by date, because it would become microbiologically unsound and so unfit for human consumption after that date.

This turnaround stemmed from the judges’ interpretation of the words ‘relating to it’, notably that:

"If the food did not need to have a use by date attached to it then any use by date label that was attached to the food would not be one ‘relating to the food’. A use by date label cannot in our view ‘relate’ to a food if the food does not require that type of label to be attached to it."

Previously, the term ‘relating to it’ has been taken to mean ‘applied’, and so the offence could be proven even where the use by date was unnecessary.

Continuing, the court determined that the burden of proof lies with the prosecution, and the prosecution must prove to a criminal standard that the food in questions was:

1. Highly perishable at the time that it was delivered to the ultimate consumer or caterer and therefore needed to bear a use by date;
2. That the defendant was selling or offering the food for sale; and
3. At the time of the sale the use by date had passed.

Despite laying the burden of proof at the feet of the prosecution, the court went on to state that when a product has a use by date marked on it, the prosecution can rely on that as evidence that the product was highly perishable. As a result, the seller of the item must then prove that the item in question was not in fact highly perishable – a potentially expensive and time-consuming task that will require expert evidence and life data from the manufacturer.

The High Court has referred the case back to the Magistrate’s Court to be reheard, and the prosecution is pursuing an appeal through the Supreme Court, so this might not be the end of the story.

What’s next?
Due to the current economic climate and the lack of enforcement budgets, it is likely that only those cases most likely to succeed will be pursued as the requirement to prove perishability could become cost prohibitive.

Manufacturers can help shop owners to stay one step ahead of the courts by taking an audit of the products that they mark up with use by dates, ensuring that only those products that actually require a use by date are labelled with one. This should help to reduce the number of cases that are brought against shop owners where the use by date was in fact unnecessary.

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