Tesco Stores Ltd, R (On the Application Of) v Birmingham Magistrates' Court

A food labelled with a “use by” date is deemed unsafe after that date for the purposes of article 14 of the Food Safety Regulation. The deeming provision in article 24 of the Food Information Regulation is definitional and conclusive, rather than a rebuttable evidential presumption. Food past its use by date therefore cannot be offered for sale, held for sale or otherwise placed on the market, even if evidence suggests that the particular item is safe to eat. The fact that breach of article 14 is criminalised does not alter the construction. The regulatory scheme adopts a precautionary, risk-based approach and provides legal certainty. Food may be relabelled following a fresh risk assessment supported by appropriate evidence, but it must not be placed on the market while that process is continuing.

Tesco faced 22 charges under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013. The charges alleged that Tesco had placed food on the market by displaying it for sale after its labelled “use by” date.

The Birmingham Magistrates’ Court determined as a preliminary issue that article 24 of Regulation (EU) No 1169/2011 created an absolute presumption that food past its use by date was unsafe. Tesco sought judicial review, arguing that the presumption was rebuttable by evidence that the food was in fact safe. The central issue was whether article 24 conclusively determined that such food was unsafe for the purposes of article 14 of Regulation (EC) No 178/2002, including in criminal proceedings under regulation 19.

1. Claim dismissed. The District Judge was correct to hold that food past its labelled “use by” date is unsafe for the purposes of article 14 of Regulation (EC) No 178/2002. Expert evidence directed to the actual safety of the individual items was therefore inadmissible on that issue.

2. The word “deemed” can, depending on context, create a rebuttable presumption. However, the authorities show that it can also establish a definitional, conclusive or absolute state of affairs. The correct construction depends on the language, context and purpose of the legislation.

3. Article 24 of Regulation (EU) No 1169/2011 must be read within the wider European food-law scheme. That scheme is consumer-orientated, precautionary and based on prospective risk assessment and management. Article 24 therefore defines food past its use by date as unsafe for article 14 purposes. It avoids case-by-case factual inquiry into whether a particular item is actually safe to eat.

4. The deeming provision applies to food displayed for sale and to food held for sale or otherwise transferred, because “placing on the market” is widely defined. A retailer may reassess and relabel food on the basis of appropriate microbiological evidence, but remains responsible for the revised information and cannot place the food on the market while the reassessment is incomplete.

5. The criminal nature of regulation 19 does not require a different construction. The meaning of article 14, read with article 24, is clear. Member States may enforce the obligation through criminal proceedings, and the availability of hygiene improvement notices does not prevent prosecution.

6. The application for judicial review was refused. The separate due diligence defence remained available in the Magistrates’ Court proceedings.

The claim was a judicial review of a preliminary ruling by Birmingham Magistrates’ Court. Permission and the appropriateness of judicial review had previously been considered by the Administrative Court, but the present judgment determined the substantive construction issue and refused the claim.