UKSC 59
On appeal from:  EWHC 296 (Admin)
Torfaen County Borough Council (Appellant) v Douglas Willis Limited (Respondent)
Lady Hale, Deputy President
JUDGMENT GIVEN ON
31 July 2013
Heard on 9 July 2013
Jonathan Kirk QC
(Instructed by Chief Legal Officer and Monitoring Officer, Torfaen County Borough Council)
The respondent did not appear and was not represented.
LORD TOULSON (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agree)
"On 29 June  at Cwmbran, you Douglas Willis Ltd, Unit 5, Grange Road, Industrial Estate, Cwmbran, Torfaen, did sell food, namely 'Pork Pigs' Tongues' … labelled 'Use by 27/7/09', after the date shown in the 'use by' date relating to it,
Contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 made under the Food Safety Act 1990."
"Does an offence under regulation 44(1)(d) of the Food Labelling Regulations 1996 require the prosecution to prove that the label or marking bearing the "use by" date, after which the food was sold, was applied at a time when (1) the food was ready for delivery to the ultimate consumer or to a catering establishment, and (2) from the microbiological point of view it was highly perishable and in consequence likely after a short period to constitute an immediate danger to human health?"
"(a) in the case of a food other than one specified in sub-paragraph (b) of this definition, an indication of minimum durability, and
(b) in the case of a food which, from the microbiological point of view, is highly perishable and in consequence likely after a short period to constitute an immediate danger to human health, a "use by" date."
The term "ultimate consumer" is defined as meaning any person who buys otherwise than for the purposes of resale, for the purposes of a catering establishment or for the purposes of a manufacturing business. The term "catering establishment" has a definition which it is unnecessary to set out but it includes restaurants, schools and hospitals.
"Subject to [exceptions which are immaterial in the present case], this Part of these Regulations applies to food which is ready for delivery to the ultimate consumer or to a catering establishment."
"Subject to the following provisions of this Part of these Regulations, all food to which this Part of these Regulations applies shall be marked or labelled with –
(c) the appropriate durability indication …"
"Where a "use by" date is required in respect of a food it shall be indicated by the words "use by" followed by -
(a) the date up to and including which the food, if properly stored, is recommended for use, and
(b) any storage conditions which need to be observed."
"When any food other than [immaterial exceptions] is sold, the particulars with which it is required to be marked or labelled by these Regulations shall appear -
(a) on the packaging, or
(b) on a label attached to the packaging, or
(c) on a label that is clearly visible through the packaging,
save that where the sale is otherwise than to the ultimate consumer such particulars may, alternatively, appear only on the commercial documents relating to the food where it can be guaranteed that such documents, containing all such particulars, either accompany the food to which they relate or were sent before, or at the same time as, delivery of the food, and provided always that the particulars required by Regulation 5 … (c) … shall also be marked or labelled on the outermost packaging in which that food is sold."
"If any person -
(a) sells any food which is not marked or labelled in accordance with the provisions of Part II of these Regulations, or
(d) sells any food after the date shown in a "use by" date relating to it, or
(e) being a person other than whichever of ?
(i) the manufacturer,
(ii) the packer, or
(iii) the seller established within the European Community,
was originally responsible for so marking the food, removes or alters the appropriate durability indication relating to that food,
he shall be guilty of an offence and shall be liable on summary conviction to a fine …"
The Divisional Court's judgment
i) The labelling requirements in Part II together with the definitions in Part I are fundamental to the scheme of the regulations.
ii) The offence under regulation 44(1)(a), ie selling food which is not marked or labelled in accordance with Part II of the regulations, is committed if food is sold which at the point of sale is not marked or labelled in the way that Part II requires it to have been marked or labelled. Accordingly, if a time had previously come when the food required to be labelled with a "use by" label, but there was a failure to do so, an offence would be committed by thereafter selling it without such a label, regardless of the condition of the food at the point of sale.
iii) Likewise, the offence of selling food after the date shown in a "use by" date relating to it, contrary to regulation 44(1)(d), would be committed if food were sold after the date shown in a "use by" label which Part II required it to have had.
iv) The need for the prosecution to show that Part II required the food to have had a "use by" label was implicit in the words a "use by" date relating to it. The court said at para 27:
"A "use by" label cannot, in our view, "relate" to the food if the food does not require that type of label to be attached to it".
The court went on to say that if, as a result of a misunderstanding, a person put a "use by" label on food that was in a frozen state at the point when it became ready for delivery to the ultimate consumer or a caterer, an offence could not be committed under regulation 44(1)(d) by selling the food after the expiry of its supposed "use by" date.
v) The court noted, as the prosecution had pointed out, that regulation 44(1)(d) did not include the words "in accordance with the provisions of Part II of these Regulations", by contrast with the language of regulation 44(1)(a). However, it observed that the obligation to label food with a "use by" date could only arise by reason of the earlier provisions, and it considered that the reference in regulation 44(1)(d) to a "use by" date must be construed in accordance with the provisions of regulations 2, 4 and 5.
vi) The court also noted the prosecution's concern that the court's construction would encourage widespread evasion of the regulations by freezing food after its "use by" date had passed and then selling it without committing any offence. However, the court considered that the fact that there was a "use by" label would be prima facie evidence that it was required, and that an evidential burden would lie on a person who sold the food after the relevant date to show that it had not in fact required a "use by" label.