‘Use By’ Dates – Who Needs Them?

On 20 February 2012 the High Court ruled in an important test food labelling case. The High Court judges allowed Torfaen County Borough Council to appeal against the acquittal of a company selling meat products past their ‘use by’ date. The case has been remitted for a re-hearing by a different panel. Lord Justice Aikens emphasised that neither the Council nor the company had won and the final decision is back with the Magistrates’ Court.

A link to the judgment can be found at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/296.html.

Background

Douglas Willis Limited (the respondent) was cleared by magistrates in September 2011 after frozen pigs’ tongues past their ‘use by’ date were found at its factory. Magistrates ruled the company had no case to answer accepting its plea that ‘use by’ dates were unnecessary as the food was not highly perishable.

High Court judges, however, ruled the magistrates had “erred in their approach in law” and sent the case back for a re-hearing by a different panel.

Key points from the High Court decision

This is one of the most important food law decisions over the past few decades. The High Court held that:

• The appropriate durability indication (e.g. a ‘use by’ date if the food is highly perishable) must be applied when the food is ready for delivery to the ultimate consumer or to a caterer;
• Once applied the food label must keep its ‘use by’ marking if it is subsequently frozen which would mean the food is no longer highly perishable;
• The marking will be prima facie evidence that the food required a ‘use by’ date in the event of a prosecution because the date has passed; but importantly
• This can be rebutted if the defendant can show that the ‘use by’ date was not required.

Consequences

This decision is significant because it means:

• It will be much more difficult to prosecute companies for selling food past its ‘use by’ date (e.g. shops that receive food from a supplier bearing a ‘use by’ date and then put it in the freezer) if a defendant can persuade the court that, by reason of the freezing, the food was no longer highly perishable and so did not require a ‘use by’ date. The evidential burden would still lie on the person who sold the food after the indicated ‘use by’ date to prove this was the case. However, a over-sticker or label providing the date of freezing should help to demonstrate this and will be a mandatory requirement when the new EU Food Information Regulation applies (in 2015) in any event.
• It will likely create confusion for (i) companies when deciding which durability indication to apply to the food label (i.e. ‘use by’ date or ‘best before end’ date) (ii) companies selling the food and (iii) consumers.