R v Food Standards Agency

Under point 1.14 of Annex I to Regulation (EC) No 853/2004, meat recovered mechanically from flesh-bearing bones after boning, or from poultry carcases after the initial removal of meat, is mechanically separated meat where the process causes loss or modification of muscle fibre structure beyond the initial cutting point. The degree of structural change need not be significant.

The cutting-point qualification concerns the initial removal of intact muscles. It does not extend to every severed edge created while residual meat is mechanically recovered. A national court must apply an authoritative ruling of the Court of Justice to the facts it finds, but cannot evade its clear application where the material facts were correctly understood and remain unchanged.

Newby Foods Ltd used a two-stage mechanical process to recover residual pork and chicken meat from bones and carcases. It challenged a Food Standards Agency moratorium requiring the resulting product to be classified and labelled as mechanically separated meat under point 1.14 of Annex I to Regulation (EC) No 853/2004.

Following a preliminary ruling from the Court of Justice, the Administrative Court held that the product was not mechanically separated meat. The Court of Appeal allowed the Agency’s appeal in [2017] EWCA Civ 400 and dismissed the judicial review claim.

The issue before the Supreme Court was whether the loss or modification of muscle fibre structure caused by Newby’s process fell outside point 1.14 because it was confined to “cutting points”.

Appeal dismissed unanimously. Lord Sales delivered the judgment, with which Lord Reed, Lord Carnwath, Lord Hodge and Lord Kitchin agreed.

1. Point 1.14 of Annex I to Regulation (EC) No 853/2004 contains three cumulative criteria for mechanically separated meat: relevant bones or poultry carcases bearing residual meat; mechanical recovery of that meat; and resulting loss or modification of its muscle fibre structure. The first two criteria were common ground. Newby’s product also satisfied the third criterion.

2. The Court of Justice’s cutting-point qualification had a narrow meaning. It distinguished the initial mechanical removal of intact muscles, including chicken breasts, from the subsequent mechanical recovery of residual meat. It did not refer to every severed edge produced during recovery. Meat removed mechanically during the initial phase is not mechanically separated meat merely because its structure changes at the cutting point. Residual meat removed mechanically afterwards generally is mechanically separated meat.

3. No significant degree of structural loss or modification is required. Point 1.14 establishes a clear demarcation which avoids case-by-case microscopic assessment. The Court of Justice repeatedly identified Newby’s product as low-pressure mechanically separated meat. That interpretation also supported the legislation’s food-safety, disease-control and consumer-labelling objectives.

4. The national court ordinarily finds the facts and applies the Court of Justice’s authoritative interpretation of EU law. A different result may follow if later examination establishes materially different facts. Here, however, the Court of Justice had accurately understood Newby’s process, and the further evidence did not alter the relevant factual basis. Its ruling therefore governed the classification.

5. Article 11 TFEU could inform the interpretation of EU legislation, but could not justify departing from a clear and authoritative Court of Justice ruling. The environmental argument about avoiding meat wastage had already been placed before that court.

6. Permission to adduce the interveners’ late evidence was refused. Admission would have been unfair to the Agency, and the evidence could not affect an appeal turning on questions of law. The position was acte clair, so no further reference was required.

1. United Kingdom Supreme Court: Dismissed Newby Foods Ltd’s appeal and affirmed the Court of Appeal’s classification of the product as mechanically separated meat: [2019] UKSC 18.
2. Court of Appeal: Allowed the Food Standards Agency’s appeal and dismissed the judicial review challenge to the moratorium: [2017] EWCA Civ 400.
3. Administrative Court: After the preliminary ruling, held that the pork and chicken products resulting from the first stage of the process were not mechanically separated meat: [2016] EWHC 408 (Admin).
4. Administrative Court: Made the preliminary reference and explained the factual and legislative background: [2013] EWHC 1966 (Admin).