Earlier this year, another supermarket found itself in the dock for food safety offences: Asda was ordered to pay more than £500,000 for repeatedly displaying out-of-date items at one of its stores in South Yorkshire.
Such prosecutions, and the publicity they generate, may act as a deterrent for retailers otherwise complacent about food safety risks – though many retailers already spend considerable resources on compliance. Systems, however, sometimes fail. The key questions for food authorities are: when should enforcement action be taken and when should food businesses be prosecuted?
The legal framework
Where food safety is concerned, the law does not require the complete absence of risk – merely that broadly reasonable, if sometimes prescriptive, rules are complied with (primarily derived from EU law). It is usually a defence to a criminal charge to demonstrate that the accused took all reasonable precautions and exercised all due diligence to avoid committing the offence.
Local authorities and other enforcement authorities are also bound by the Food Law Code of Practice, which requires a reasonable, proportionate and risk-based approach to enforcement. Authorities should not, for example, close a business down using extensive emergency powers, or prosecute a business and its directors, without a proper evidential basis and without seriousness thresholds and public interest requirements being met.
The difficulty, as ever with regulatory regimes, is in the exercise of discretion.
The code requires the application of a ‘hierarchy of enforcement’: local authorities must operate a graduated and educative approach to enforcement, progressing to formal action only where informal measures have failed to achieve the desired effect or where circumstances point to a significant risk to health, fraudulent practices, or deceptive practices.
The code also provides, however, that local authorities must investigate suspected non-compliance and take appropriate enforcement action to ensure that food businesses remedy established breaches.
There is an inherent tension here: in practice repeated minor non-compliance – even where it presents no significant risk to health – can still result in enforcement action, including closure and prosecution.
The Tesco test case
In 2021, Tesco was ordered to pay £7.6m for selling out-of-date food at three stores in Birmingham, thereby placing food on the market that was deemed ’unsafe’. The court accepted that Tesco had robust food safety procedures in place, took food safety seriously, and had a good overall safety and hygiene record – yet procedures had not been followed at these stores. Why were they penalised so heavily?
EU food law provides that food beyond its use-by date shall be considered ’unsafe’ and cannot be placed on the market. Manufacturers set use-by dates by reference to organoleptic qualities – sight, smell, and touch. There was expert evidence that the food sold by Tesco was not in fact unsafe, but the courts found this could be no defence: EU food law takes a precautionary approach and defines food beyond the use-by date as ‘unsafe’. Proving it safe would not change that classification.
There are legitimate public policy reasons for the EU’s approach, which readers may or may not find persuasive. What makes the case instructive, however, was the judge’s reaction to Tesco’s argument that “food is still consumable after the use-by date”. He found as aggravating factors that Tesco had tried to avoid prosecution and had relied in mitigation on expert opinions he considered to belittle the law. In his view, Tesco should simply have come to court, apologised and taken responsibility. The judge agreed with the local authority that Tesco had played ‘Russian roulette’ with customers’ safety.
This case gave us a yardstick: sometimes reasonable, proportionate and risk-based enforcement means treating low-level non-compliance as Russian roulette – and throwing the book at anyone who raises contrary arguments.
Tom McNeill is a specialist food safety lawyer at BCL Solicitors
No comments yet