Sovio Wines Ltd, R (on the application of) v Food Standards Agency

The wine-regulation regime must be read as a whole. A product outside the substantive definition of wine may nevertheless fall within the regime where its description or presentation purports to use protected wine designations. A producer cannot avoid controls on designation and labelling by arguing that the liquid product itself is outside the regime.

Clear statements that a product falls within Trading Standards’ domain do not create a legitimate expectation that the wine regulator will refrain from enforcement, particularly where the statements were made in the context that the product could not be marketed as wine. Legitimate expectation cannot require a public authority to act contrary to a statutory duty to enforce applicable Community provisions.

The claimant challenged a Movement Control Notice issued by the Food Standards Agency concerning approximately 3,119 cases of low-alcohol wine-based products. The notice alleged breaches of Council Regulation 1493/1999 arising from the unauthorised production process, the product’s alcoholic strength and the use of the descriptions “aerated semi-sparkling wine” and “premium Spanish wine”.

The claimant argued that the product fell outside the wine regime and that earlier advice from the Wine Standards Board and Trading Standards created a legitimate expectation against enforcement. The central issues were whether the labelling brought the product within the regulatory regime and whether enforcement breached legitimate expectation.

1. Jurisdiction. The application for judicial review was refused. Although the liquid product did not fall within the substantive wine regime because the spinning cone process was unauthorised and its total alcoholic strength was below the minimum for “aerated semi-sparkling wine”, its presentation used protected wine designations.
2. The Base Regulation had to be read as a whole, rather than by treating the provisions on oenological practices and those on description and presentation as isolated chapters. Under Article 49, a product whose description or presentation did not conform could not be held for sale or placed on the Community market. Annex VII C(3)(e) restricted the designation “aerated semi-sparkling wine” to products satisfying Annex I point 18. The product did not satisfy that definition and could not use the word “wine”.
3. The labelling therefore brought the products within the jurisdiction of the wine regime and the enforcement responsibility allocated to the Agency by regulation 3 of the Common Agricultural Policy (Wine) (England and Northern Ireland) Regulations 2001. Regulation 8 empowered the Agency to prohibit movement where there was reason to believe that relevant Community provisions had been contravened.
4. The Wine Standards Board was the statutory predecessor of the Agency, applying R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 365. However, its communications, read in context, consistently indicated that the product could not be marketed as wine. They did not promise that enforcement action would not be taken if the product infringed the Base Regulation.
5. No legitimate expectation arose from the advice of either the Wine Standards Board or Trading Standards. In any event, the Agency’s statutory duty to enforce the Regulation prevailed, applying R v Department for Education and Employment, ex parte Begbie [2000] 1 WLR 1115. The decision in R (Bapio Action Ltd) v Secretary of State for the Home Department [2008] AC 1003 was not authority for a general rule that one public body’s representation binds another; its reasoning depended on the constitutional principle that the Crown is indivisible, which did not apply here.
6. Even if the jurisdiction argument had succeeded, relief would not have been appropriate because the labelling infringements were established and enforcement by the relevant regulator would have remained necessary. The claim was refused.