The ‘use-by-date-gate’ case has left the supermarket with a £7.5m fine. But could it open the floodgates to more prosecutions? Nick Hughes reports.
When the judge delivered his verdict it was unusually scathing. The defendant had presented an “implausible defence”. They had showed “no genuine contrition” about the offences and were “only pleading guilty” because they had “run out of options”.
The defendant in question was not, as you might have surmised, a persistent, petty crook, but the UK’s biggest food businesses. In April, Tesco was fined over £7.5m for selling 67 items of fresh products past their ‘use-by’ dates. The offending items included packs of grapes and strawberries with mould on them, pork belly slices and soup that was 17 days past its use-by date.
Beyond the colourful language employed by the judge, two points make this particular case of significance to the wider food sector. One is the especially hefty multi-million pound fine. The other is Tesco’s argument in its defence, which was rejected by the judge, that although the food was past its use-by date that didn’t automatically mean it should be presumed unsafe.
So what are the future implications of the case for other food operators – both retailers and foodservice?
To answer that question it’s important first to understand the specific details of the Tesco case. It dates back to 2015 and a complaint made by a member of the public following a visit to a Tesco store in Birmingham. An environmental health professional (EHP) visited the store and found six items on display after the use-by date.
As opposed to a ‘best-before’ date that relates to food quality and is not a legal requirement, a use-by date relates to food safety and means food cannot be sold, redistributed or consumed after this date. The only exception is if the food has gone through a safe freezing or cooking process before the use-by date has passed, and has been appropriately re-labelled.
Tesco own goal
As often happens in cases involving food hygiene or safety, Tesco was given the chance to review its procedures and rectify the problem. Several months later, it committed what the judge described as an “own goal” by inviting Birmingham City Council (BCC) to visit the store again and carry out a check. Once again, the EHP found many items displayed for sale after their use-by date.
Tesco pleaded not guilty at the first court hearing claiming it had carried out due diligence. It argued that although the food was past its use-by date it was not unsafe for consumption and blamed human error for the failures. A trial was set for November 2017.
Meanwhile, another complaint from a member of the public in May 2017 caused EHPs to visit a further two Tesco stores in Birmingham where they found a total of 38 items for sale beyond their use-by dates.
There followed a protracted period of wrangling with Tesco’s primary authority, Hertfordshire County Council, over BCC’s consent to prosecute Tesco (the primary authority scheme allows businesses to form a partnership with a local authority to provide advice on complying with environmental health, trading standards or fire safety regulations that other local authorities must respect). This consent was ultimately granted and the case came to Birmingham Magistrates Court in 2019 where the judge ruled that evidence provided by Tesco’s defence expert was inadmissible.
The expert had sought to argue that the law was wrong to presume that food past its use-by date was automatically unsafe. Tesco appealed to the High Court which dismissed its arguments as “inappropriate myopia” and confirmed that simply selling food past its use-by date was sufficient to commit the offence under food safety legislation.
It was only in September 2020 that Tesco finally entered guilty pleas, by which point, in the judge’s view, they had “run out of options”, leading him to brand the plea “probably the most reluctant guilty plea in legal history”.
Delivering his explosive judgement, District Judge Qureshi acknowledged Tesco’s overall good safety and hygiene record and the presence of a clear policy about food safety it took seriously. But it was what the judge considered to be the egregious nature of Tesco’s defence that turned this from a humdrum judgement into a court scene fit for TV drama.
The judge noted how Tesco’s expert scientist had analysed identical food items as those originally sold and thought the levels of bacteria on them rendered the food safe to eat. The expert said he would be happy to eat the items himself and even compared the cotton-like mould on grapes to the mould in blue cheese.
The judge said this analysis was “completely at odds with the feeling of disgust that any ordinary member of the public would have on seeing the mould on grapes”. He added the caustic comment: “If I am wrong about that, then perhaps someone might pioneer a new market amongst the public for mouldy grapes to be eaten with mouldy cheese, mouldy biscuits and pungent wine.”
The judge dismissed the defence’s argument that the food presented a low risk of adverse effects as “an affront to common sense”. He concluded that the expert’s opinions about food not being unsafe after the use-by date were “cavalier” and “against the weight of evidence” and that the expert “belittled the law when he compared the mould on a grape to blue or Stilton cheese”.
He continued: “Tesco say the law needed to be clarified. It was crystal clear but Tesco tried to make it confusing. In the world of common sense, such an argument was simply spurious and without any merit in it whatsoever.”
One experienced EHP familiar with the case agrees with the judge’s assessment that the law is perfectly clear: “If you read article 14 of EC regulation 178/2002 the definition of unsafe isn’t just that [food] will make you unwell it is far wider than that. You might try and argue that some of those food items shouldn’t have a use-by date on them because they weren’t highly perishable but if the manufacturer has put a use-by date on the product, they believe that beyond that date there is a significant possibility of causing illness.”
It all seems pretty clear cut, but is it? There is, after all, growing evidence that the public are similarly cavalier in their approach to use-by dates. A covid-19 consumer tracker report published by the Food Standards Agency (FSA) last year found that 35% of people are eating cooked meats past their use-by date. People are also consuming bagged salad (36%), pasteurised milk (28%), soft cheeses (21%) and smoked fish (17%) past these dates. All these foods potentially pose a risk to food safety when eaten past their use-by dates according to FSA microbiologists. “Worries about affordability appear to influence this,” the tracker report noted.
Some lawyers have also expressed reservations over the judge’s blunt dismissal of Tesco’s argument. In a recent blog, Jessica Burt, food and beverage lawyer at Mills & Reeve, wrote that the judge’s position that Tesco’s was a spurious argument seemed like “an extremely censorious approach to have taken”.
On another day in another courtroom perhaps another judge would have taken a more sympathetic view of Tesco’s defence? Or perhaps not. As Burges Salmon partner Sian Edmunds points out, where the Tesco argument has been used in previous cases involving use-by dates it has been used in mitigation with regards to sentencing rather than a defence in its own right.
“What we’ve said on behalf of our clients is ‘look, here’s the evidence that actually these products weren’t going to cause harm. We appreciate we shouldn’t have had products out past their use-by date but the risk of harm is low so therefore the sentence should be lower on that basis’.” Edmunds suggests that by arguing that the law should have been interpreted in a different way in the first place, Tesco faced “an uphill battle”.
Edmunds adds that it is of relevance to the food sector as a whole that Tesco has used that particular argument and not been successful; the implication being that other businesses should think carefully before using the defence.
Katie Vickery, international regulatory and compliance partner at Osborne Clarke, says for other food businesses the judgement “should serve as a reminder of the importance of having good systems, training and monitoring in place to remove out of date foods”.
But what about the level of fine imposed on Tesco which Edmunds describes as “enormous”? A £7.5m sum might be small change to a supermarket with a £50bn turnover but it’s still a huge sum for an offence of this nature. Was this a warning shot across the bows of other multi-site food businesses that take liberties with food safety?
There’s likely an element of the deterrent at play here. However the judge also implied that Tesco’s defence, its numerous attempts to avoid being prosecuted and plead guilty, and a lack of contrition, had contributed to the unusually high level of fine imposed.
Edmunds says the fact that three separate stores and a wide variety of products were involved may have given the court the impression that this wasn’t a one-off incident and there had been a general lack of stringency around shelf control.
Perhaps most significantly for the wider food sector, the EHPs from Birmingham involved in the prosecution of Tesco have said they will assist other local authorities looking to prosecute food safety offences. This comes amid concerns that smaller local authorities may find it difficult to take on huge businesses with deep pockets to pursue legitimate cases through multiple courts.
The team at Birmingham recently revealed they have been in touch with other local authorities dealing with similar cases involving other retailers that had been put on hold until the Tesco ruling. “If they want some help or some guidance or, just professional guidance between EH officers, we haven't got a problem with trying to help out on that,” Mark Croxford, head of environmental health at BCC told Environmental Health News.
The judge’s comments in the Tesco case made for good headlines. But dig a little deeper and the implications of what we might term ‘use-by-date-gate’ look set to run well beyond this particular courtroom drama.