Torfaen County Borough Council v Douglas Willis Ltd

For an offence of selling food after the date shown in a “use by” date, the prosecution must prove that the food required a “use by” label when it became ready for delivery to the ultimate consumer or a caterer. It must also prove that the defendant sold the food after the date had passed. The offence is one of strict liability.

Food subsequently frozen does not lose a “use by” requirement that arose at the relevant earlier point. A “use by” label on food being sold is prima facie evidence that the food required such a label. The seller then bears an evidential burden of showing that it was not required.

Torfaen County Borough Council prosecuted Douglas Willis Limited on charges under regulation 44(1) of the Food Labelling Regulations 1996. The charges concerned meat products bearing expired “use by” dates. The products were frozen when inspected, and no evidence established when they had been frozen.

The Justices dismissed the charges after a submission of no case to answer. They considered that frozen food was not highly perishable and did not require a “use by” date. On appeal by way of case stated, the High Court was asked whether regulation 44(1)(d) required proof that the food was highly perishable and an immediate danger to human health at the time of the offence, and whether freezing subsequently extinguished an existing “use by” date.

1. Appeal by way of case stated. The Justices had erred in law. The matter was remitted to a different panel of Justices for rehearing.
2. The definitions in regulation 2 apply throughout the Food Labelling Regulations 1996. Part II applies only when food is ready for delivery to the ultimate consumer or a catering establishment. The labelling requirements, including the appropriate durability indication, therefore take effect at that point.
3. Under regulation 44(1)(a), the prosecution must prove that the defendant was selling food within the regulation 2 definition, that Part II applied to the food, and that it was not marked or labelled as required. This is an offence of strict liability.
4. Regulation 44(1)(d) also creates an offence of strict liability. The prosecution must prove, to the criminal standard, that:
   1. when the food became ready for delivery to the ultimate consumer or caterer, it was highly perishable and therefore required a “use by” date;
   2. the defendant was selling it at the time of the alleged offence; and
   3. the date on the label had passed.
5. If food required a “use by” label at the relevant point, subsequent freezing does not remove that requirement. Conversely, food that never required such a label cannot fall within regulation 44(1)(d) merely because an inappropriate label was attached. A “use by” label present when food is sold is prima facie evidence that the label was required, creating an evidential burden on the seller to show otherwise.
6. The narrower construction was appropriate for a provision creating a criminal offence and was compatible with Article 10 of Directive 2000/13/EC. The prosecution’s concern about evasion was met by the evidential rule.

• Gwent Justices: dismissed 31 charges after a submission of no case to answer and stated a case concerning 23 charges under regulation 44(1)(d).
• High Court (Administrative Court): held that the Justices had adopted an erroneous construction of the Regulations and remitted the matter to a different panel of Justices for rehearing.