Gulin GFS Monk Fruit Corporation, R (on the application of) v Food Standards Agency

In determining whether a food is novel, the decision-maker must assess whether it was used for human consumption to a significant degree before the statutory date by considering the whole evidential picture.

Guidance identifying possible weightings for different evidence does not create rigid or hierarchical evidential categories. Pre-date sales invoices are not a mandatory precondition. Personal testimonies, surveys and other supporting material may contribute materially to the assessment, including where older documentary evidence is difficult to obtain.

The relevant question is whether there is sufficient evidence of food use. It is not necessary to show that the product was used exclusively as food. Administrative reasons must explain the actual basis of decision, and later evidence may elucidate but must not materially alter or replace those reasons.

The claimant sought judicial review of a joint decision by the Food Standards Agency and Food Standards Scotland under Article 4 of the retained Novel Foods Regulation and the Implementing Regulation. The Agencies concluded that monk fruit decoctions were novel because the evidence did not demonstrate significant human consumption in the United Kingdom or European Union before 15 May 1997.

The dossier included post-1997 invoices and recipes, surveys, personal testimonies, questionnaires, affidavits and other evidence of pre-1997 consumption. The claimant challenged the Agencies’ approach on the grounds that they had required pre-1997 sales data, treated personal testimony as incapable of proving significant consumption without independent verification, and required exclusive food use.

1. The claim succeeded. The decision dated 8 September 2022 was quashed, and the Agencies were ordered to reconsider the application in the light of the judgment.
2. The statutory question was whether monk fruit decoctions had been used for human consumption to a significant degree in the United Kingdom or European Union before 15 May 1997. The legislation did not impose a requirement for pre-date sales invoices or other particular documentary evidence.
3. The Guidance required a case-by-case assessment of the whole picture. Its table of possible weightings did not establish rigid or hierarchical categories under which surveys, personal testimonies and other material were necessarily inferior or incapable of proving significant consumption. The Agencies had unlawfully treated the absence of pre-1997 invoices as effectively determinative and had categorised other evidence as merely supporting evidence.
4. The Agencies had also imposed an unsupported requirement of independent verification. The legislation and Guidance contained no such requirement, and the decision failed properly to assess the substantial survey and testimony evidence on its merits.
5. The relevant evidence had to demonstrate food use, but it did not have to demonstrate that monk fruit was used exclusively as food. The reasoning on this issue was in any event infected by the same erroneous evidential approach.
6. Applying South Buckinghamshire District Council v Porter (No. 2), R. v Westminster City Council Ex p. Ermakov, Nash v Chelsea College of Art and Design and Inclusion Housing Community Interest Company v Regulator of Social Housing, later evidence could elucidate the reasons given but could not materially recast or contradict them. The Agencies’ witness evidence seeking to rewrite the contemporaneous reasons was inadmissible.
7. The court could not determine that the same result was inevitable if the correct approach had been applied. Reconsideration was therefore required.