Newby Foods Ltd, R (On the Application Of) v Food Standards Agency

Mechanically separated meat is defined by three cumulative criteria. Any loss or modification of muscle fibre structure satisfies the third criterion, subject only to the qualification for modification strictly confined to cutting an intact muscle from the animal.

That qualification does not exempt residual meat mechanically removed from bones or carcases after intact muscles have been removed. A national court must apply a binding ruling of the Court of Justice on EU law, although it remains responsible for finding the facts. That distinction could not alter the required classification here under Regulation (EC) No 853/2004.

Newby Foods used a two-stage process to mechanically recover residual meat from bones and poultry carcases and then mince it. The product was known in the United Kingdom as desinewed meat. The Food Standards Agency imposed a moratorium requiring the chicken and pork product to be treated as mechanically separated meat (MSM).

In judicial review proceedings, Edwards-Stuart J made a preliminary reference to the Court of Justice of the European Union. Following its ruling, he held that the first-stage chicken and pork product was not MSM, construing its reference to a cutting point broadly. The Food Standards Agency appealed.

The issue was whether the cutting-point qualification in paragraph 1.14 of Annex I to Regulation (EC) No 853/2004 extended to every severed edge produced while mechanically recovering residual meat.

1. Appeal allowed unanimously. The Court of Justice’s ruling identified three cumulative conditions for MSM: use of the specified bones or poultry carcases, mechanical recovery of the remaining meat, and loss or modification of its muscle fibre structure caused by that process. Any such loss or modification satisfied the third condition.

2. Paragraphs 42 and 43 of the Court of Justice’s judgment created a binding qualification where modification was strictly confined to the cutting point. Although that qualification was a gloss on paragraph 1.14 of Annex I to Regulation (EC) No 853/2004, it applied only to mechanical cutting of intact muscles from the animal. It was not a general exception for every point at which residual meat was severed.

3. The High Court’s broader interpretation would permit repeated mechanical cutting of meat left on bones or carcases, however extensive, to avoid MSM classification. That would defeat the purpose of the classification and undermine the Regulation’s consumer-protection objective. The first stage of Newby’s process recovered residual meat after intact muscles had been removed. Its product therefore had to be classified as MSM.

4. A national court finds the facts and applies the Court of Justice’s ruling to them; factual observations by the Court of Justice do not bind it. It was consequently open to the judge to find that the product was not obtained from bone scrapings. However, that issue was academic because the binding legal ruling conclusively required MSM classification. Permission to challenge the bone-scrapings finding was refused.

• Court of Appeal (Civil Division): Allowed the Food Standards Agency’s appeal and held that the relevant chicken and pork product was MSM within paragraph 1.14 of Annex I to Regulation (EC) No 853/2004.
• High Court, Queen’s Bench Division, Administrative Court: Edwards-Stuart J had allowed Newby Foods’ judicial-review claim in part on 23 March 2016, holding that the first-stage chicken and pork product was not MSM.
• Court of Justice of the European Union: On a preliminary reference made on 16 July 2013, ruled on 16 October 2014 that the product mechanically recovered from relevant bones or poultry carcases is MSM where the process causes muscle-fibre loss or modification beyond that strictly confined to the cutting point.