Tesco fined £7.5M for breaches of the “use by date” food legislation

Richard Barraclough KC instructed by Birmingham City Council has brought to an end the long running saga of the Tesco’s “use by date” prosecution concerning three stores in Birmingham.

The 22 offences date back to 2016 and 2017. The proceedings have passed through Regulatory Delivery, the Secretary of State, the Birmingham Magistrates Court where DJMC Jellema ruled that Tesco were not entitled to adduce evidence of an expert in an attempt to undermine the Article 24/14 presumption that foods past their use by dates are deemed to be unsafe. An appeal to the Divisional Court by way of judicial review failed. The Court described the Tesco submissions as “myopic” and the law as “unambiguous”.

Finally Tesco pleaded guilty in the Birmingham Magistrates Court where DJMC Qureshi described that

“this guilty plea must rank as probably the most reluctant plea in legal history”.

As regards the microbiological evidence of the expert instructed by Tesco, the judge commented “He checked the bacteria and thought the levels were fine and rendered the food safe to eat. He would be happy to eat them. He even compared the cotton-like mould on grapes to the mould in blue cheese. He is completely at odds with the feeling of disgust that any ordinary member of the public would have on seeing the mould on grapes. If I am wrong about that, then perhaps someone might pioneer a new market amongst the public for mouldy grapes to be eaten with mouldy cheese, mouldy biscuits and pungent wine. In his opinion some of the food manufacturers are wrong to even put a use by date on some of their foods”. His opinion he said was “an affront to common sense”.

Factors increasing seriousness included the fact that

“The public will not be left with any confidence that Tesco takes the legislation seriously as Dr Dinsdale says the consumer can decide for themselves whether to buy something, and in my view he belittled the law when he compared the mould on a grape to blue or stilton cheese.”

As regards the attitude taken by Tesco to the legislation the judge said “Since 2014 the law has been absolutely clear that food cannot be sold after the use by date. Tesco decided to try to argue that food is still consumable after the use by date and it should not be an offence. They found a scientist who gave that opinion. Lawyers and judges might think and say such arguments are interesting and of public importance. Tesco say the law needed to be clarified. It was crystal clear what the law was but Tesco tried to make it confusing. In the world of common sense, such an argument was simply spurious and without any merit in it whatsoever. This needs to be said to Tesco and others in case people want to find ways to avoid complying with the food safety laws.”

The judge found that there was “no genuine contrition”

Professor Forsythe instructed by Birmingham City Council provided advice to the Court on microbiological issues.