By Katherine East and Craig Weston.
District Judge Qureshi handed down a damning guilty verdict in the Birmingham Magistrates’ Court on 19 April 2021 in the case of Birmingham City Council v Tesco Stores Ltd.
The prosecution presented evidence of Tesco having committed breaches of EU food safety regulations across three separate Tesco stores in Birmingham. Inspectors found that, in 2016 and 2017, each of the stores had sold food which was, in some cases, 17 days beyond its ‘use by date’.
Tesco argued (amongst other things) that, whilst the food may have been past its use by date, it was not likely to cause significant hard to consumers and, in most cases, was still safe to eat.
DJ Qureshi rejected Tesco’s argument, calling it “an affront to common sense” and, in doing so, provided the following warning to other companies who attempt to circumvent the law this way:
“This needs to be said to Tesco and others in case people want to find ways to avoid complying with the food safety laws. If the Tesco defence was a valid one, no one would ever plead guilty to selling an item after the use by date and they would shop around to find a scientist to say it is still safe to eat. If Tesco had succeeded with this implausible defence about unsafe foods, then the game of Russian Roulette can be described as a safe one!”
Comments from Katherine East, Solicitor specialising in Commercial Dispute Resolution and expert in Consumer Rights
The Court has made it clear that, when it comes to safety standards and consumer protection, the onus sits firmly with the trader and the Court will not allow it to be passed onto the consumer. This fits with the theme of consumer protection laws more generally, which are heavily weighted in favour of consumers rather than traders, who are viewed by legislators as having the greater bargaining power.
Comments from Craig Weston, Senior Associate Barrister specialising in Regulatory and Criminal investigations and expert in Health and Safety Regulations
Both the size of the fine and the unusually robust comments made by the Judge in this case should serve as a timely reminder for those in the food and drink industry to review, analyse, audit and if necessary invest in their food safety systems and controls. This case highlights the need for early engagement with legal advisors to ensure that mistakes are not repeated when Environmental Health re-visit premises to check compliance following a previous inspection. It also serves to highlight the need to carefully consider your litigation strategy if confronted with a prosecution resulting from the conduct.
Tesco has been fined £7.56m for selling food past its use-by date at three of its stores. The supermarket admitted 22 breaches of the Food Safety and Hygiene Regulations between 2016 and 2017 following an investigation.