High Court rules on meaning of ‘use by’ date when food frozen

Gerry Danby
Food Marketing and Brands
High Court rules on meaning of ‘use by’ date when food frozen

Last year Torfaen County Borough Council brought a prosecution against Douglas Willis Limited for a number of offences, all similar in nature, contrary to regulation 44(1)(d) of the Food Labelling Regulations 1996. This is the regulation that makes it an offence where any person “sells any food after the date shown in a ‘use by’ date relating to it”. Torfaen alleged that Willis had sold frozen pigs’ tongues after their ‘use by’ date.

The case was heard in the Magistrates Court last September. It was submitted on behalf of Willis that the prosecution had not proven the essential elements of the offence, in particular that because the food items were frozen when inspected by Torfaen they were not highly perishable and so did not, under the 1996 Regulations, require a ‘use by’ date. The date had, in effect, ceased to have any relevance. The submission was accepted by the Magistrates with the result that the prosecution failed. Torfaen appealed to the High Court and judgement in the case was given last month. The Court held that, in order to obtain a conviction for an offence under regulation 44(1)(d), the prosecution must prove beyond reasonable doubt:

  1. At the point the food was ready for delivery to the ultimate consumer or to a caterer, it was ‘highly perishable’ and so had to be labelled with a ‘use by’ date.
  2. The defendant was at the time of the alleged offence selling the food.
  3. At the time of the alleged offence, the ‘use by’ date had passed.

The Court went on to state that the fact that food, when sold, is labelled with a ‘use by’ date is prima facie evidence that it was required to be so labelled. This means there is an evidential burden on the defendant to demonstrate that the label had not been required in the first place. Furthermore, freezing food that had a ‘use by’ date correctly applied at the time does not mean the ‘use by’ date ceases to have effect. If it is sold after the ‘use by’ date, an offence under regulation 44(1)(d) would be committed. The Magistrates Court had, in short, erred in applying the law correctly to the facts of the case. The High Court remitted the case back to the Magistrates Court for a rehearing before a different bench. Neither side has yet won their case, a conviction for Willis remains a possibility, but an important issue under the 1996 Regulations has been made much clearer. Click here for a copy of the full judgement of the High Court in the case of Torfaen County Borough Council v Douglas Willis Limited (2012).