Torfaen County Borough Council v Douglas Willis Limited

Under regulation 44(1)(d) of the Food Labelling Regulations 1996, the prosecution need prove only that the defendant possessed food for sale, the food bore a “use by” date relating to it, and that date had passed. The phrase “relating to” denotes a factual connection between the label and the food. It does not require proof that the food was legally required to bear the label or was highly perishable when the alleged offence occurred.

A mistaken label must ordinarily be corrected through the authorised procedure for removing or altering it. Its possible application by an unauthorised mischief-maker was left open.

Trading standards inspectors found frozen meat bearing expired “use by” dates at the respondent company’s premises. Gwent Justices dismissed 23 charges under regulation 44(1)(d) of the Food Labelling Regulations 1996, holding that the prosecution had to prove that the food was then highly perishable and likely shortly to endanger health.

On an appeal by case stated, the Divisional Court held in [2012] EWHC 296 (Admin) that present perishability was unnecessary. It nevertheless required proof that the food had previously been in a state which legally required a “use by” date. The council appealed. The issue was whether regulation 44(1)(d) required proof that the label was applied when the food was ready for delivery to an ultimate consumer or catering establishment and was microbiologically highly perishable.

1. Appeal allowed to the stated extent. Lord Toulson, with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agreed, held that the prosecution did not have to prove either that the food was highly perishable when the alleged offence occurred or that it had legally required a “use by” label when the label was applied. The certified question was answered “no”.

2. Regulation 44(1)(d) of the Food Labelling Regulations 1996 required proof of three matters: the defendant had the food in its possession for sale; the food was the subject of a mark or label bearing a “use by” date; and that date had passed. Possession for sale fell within the extended definition of “sell”. Requiring proof of present perishability would seriously weaken consumer protection because expired perishable food could be frozen and later sold without disclosure of how long it had been unfrozen.

3. In ordinary English, a date “relating to” food means a date referring to that food. The phrase denotes a factual connection, not a legal requirement that the food should have borne the label. Regulation 35 used similar language when referring to commercial documents relating to food.

4. The statutory context reinforced that construction. Regulation 44(1)(a) expressly referred to labelling required by Part II, whereas regulation 44(1)(d) contained no such qualification. Paragraph (a) addressed food which should have been labelled but was not. Paragraphs (d) and (e) separately protected consumers after a “use by” label had been applied by restricting sale after its date and restricting removal or alteration.

5. A retailer receiving food bearing a mistaken label could not ordinarily remove it without the written authority contemplated by regulations 44(1)(e) and 46. Permitting sale after the mistaken date would create an anomaly. Whether regulation 44(1)(d) applies to a malicious label attached by an unauthorised mischief-maker was left undecided.

6. The justices had therefore erred in finding no case to answer. Because of the passage of time, the matter was not returned to the original justices. The Divisional Court’s order for a rehearing before a different panel remained in force, with the rehearing to proceed according to the law stated by the Supreme Court.

1. United Kingdom Supreme Court: In [2013] UKSC 59, unanimously allowed the council’s appeal to the stated extent, answered the certified question “no”, and directed that the Divisional Court’s order for a rehearing before a different panel should stand.

2. Divisional Court: In [2012] EWHC 296 (Admin), reported at [2012] CTLC 16, rejected the arguments advanced by both parties. It held that the prosecution need not prove perishability at the date of the offence but had to prove that the food had previously required a “use by” label. It ordered a rehearing before a different panel of justices.

3. Gwent Justices: Dismissed the 23 charges under regulation 44(1)(d) of the Food Labelling Regulations 1996 on a submission of no case to answer, holding that the prosecution had to prove present high perishability and an imminent danger to health.