NEWBY FOODS LIMITED (R on the application of) v FOOD STANDARDS AGENCY

The definition of mechanically separated meat is determined by the cumulative criteria in Annex I point 1.14 of Regulation (EC) 853/2004, as interpreted by the CJEU and Supreme Court. Requirements governing the raw materials which may lawfully be used to produce mechanically separated meat do not add to that definition. A product may therefore satisfy the definition while having been produced in breach of those requirements.

Whether a process substantially alters an initial product under Regulation (EC) 852/2004 is a matter of fact and degree. A public authority cannot create a legitimate expectation requiring it to apply an incorrect interpretation of legislation. Adequate reasons must be assessed in context, and a decision need not address every argument in the detail later advanced in judicial review proceedings.

The claimant operated a meat-processing business and developed a new process for recovering residual meat from butchered poultry and pork carcases. The Food Standards Agency concluded that the resulting product was mechanically separated meat and required the claimant to obtain approval for its production.

The claimant sought judicial review on four grounds: that the Agency had failed to address loss or modification of muscle fibre structure; that it had misinterpreted the raw-material requirements for mechanically separated meat; that its decision frustrated a legitimate expectation arising from earlier correspondence; and that it failed to give adequate reasons. The central issue was whether processing the meat before mechanical separation prevented the resulting product from being mechanically separated meat.

1. Ground 1B dismissed. Annex III section V chapter II point 3 of Regulation (EC) 853/2004 imposed requirements for the lawful production and marketing of mechanically separated meat. It did not supplement the definition in Annex I point 1.14 or establish an additional definitional criterion. A product satisfying the three cumulative criteria identified by the CJEU could therefore be mechanically separated meat even if its production contravened the raw-material requirements.
2. The question whether the first stage of the new process created a meat preparation was immaterial to whether the final product satisfied the definition of mechanically separated meat. In any event, extrusion constituted processing only if it substantially altered the initial product. That was a question of fact and degree. The Agency was entitled to conclude that the extrusion had caused only fragmentation and had not substantially altered the meat.
3. A meat preparation could be fresh meat, or at least material complying with the requirements for fresh meat. The definition of fresh meat was broad, and a meat preparation had to retain the characteristics of fresh meat.
4. Ground 2 dismissed. A legitimate expectation requires a clear, unambiguous and unqualified representation, together with circumstances making it unfair for the public body to depart from it. Such an expectation cannot require a public body to perform a statutory duty incorrectly or to adopt an erroneous interpretation of legislation. The earlier letters did not promise that the new process would be treated as producing a non-MSM product.
5. Grounds 1A and 3 dismissed. Mechanical separation of residual meat from bones necessarily involved loss or modification of muscle fibre structure beyond the initial cutting point. The Agency therefore did not err by failing to state that conclusion separately. Its reasons were adequate in context because they explained why the extrusion stage had not materially altered the product and why the new process was not materially different from the old process.
6. In any event, under section 31(2A) of the Senior Courts Act 1981, relief would have been refused because it was highly likely that the outcome would have been the same. The claim was dismissed.

Not an appeal. The judgment records earlier proceedings in the same litigation, including a CJEU reference, a Court of Appeal decision and the Supreme Court decision, but those decisions form part of the same litigation and are not treated as appellate history for the present judgment.