Tesco loses legal challenge over sale of out-of-date food

The courts have reinforced the importance of use-by dates amid misleading advice about eating out-of-date food circulating online.

Supermarket giant Tesco lost a judicial review this month over whether it is an offence to offer out-of-date food for sale. Tesco mounted the legal challenge after Birmingham City Council brought 22 charges against it for selling food past its use-by date in several stores.

Part of the judicial review hinged around the fact that items past their use-by date are presumed to be ‘unsafe’ according to article 24 of the Food Information Regulation. Selling such items is therefore in breach of article 14(1) of the Food Safety Regulation.

However, Tesco argued that the items themselves were not in fact unsafe, submitting an expert report by food microbiologist Slim Dinsdale that concluded that none of the products seized by the council would constitute a danger to human health.

Lord Justice Hickinbottom, one of the two judges who heard the challenge, said: “In my view, the legislative provisions are unambiguous: as a result of article 24 [of the Food Information Regulation], food that is displayed for sale […] with a labelled use-by date that has expired is ‘unsafe’ for the purposes of article 14 of the Food Safety Regulation, and that cannot be controverted by evidence.”

The other judge, Mr Justice Swift, said: “The District Judge [at the preceding Magistrates’ Court hearing] was correct to conclude that the expert evidence that Tesco wished to rely on was inadmissible: the food in issue was unsafe for the purposes of the charges brought because it had passed its use-by date.”

Meanwhile, articles that encourage people to eat out-of-date food have been circulating online after the consumer choice website Which? published a piece quoting Dinsdale’s advice. While the Which? article mentions that people in vulnerable groups should stick to use-by dates, the rest of it presents Dinsdale’s advice that many foods, including dairy, poultry and fruit and vegetables, are safe to consume days, weeks or even months past their use-by date.

Kate Thompson, CIEH’s director for Wales and food safety spokesperson, said: “We don’t know why Which? has written this article and we are concerned that some of the advice provided by their ‘expert’ contradicts official advice provided by the Food Standards Agency (FSA).”

CIEH is writing to Which? to find out why they have published such advice, she added.

“FSA advice is clear – food should not be consumed after its use-by date. Use-by dates are there to keep people safe. The food could be unsafe to eat or drink after its use-by date, even if it has been stored correctly and looks and smells fine. Use-by dates are based on an assessment of the food, the processing and storage conditions. This assessment will have been done by the manufacturer of the product, often with expert advice. CIEH advice is for consumers to adhere to use-by dates,” Thompson said.