UK Food Law Court Cases
Department of Food and Nutritional Sciences
The University of Reading, UK

UK Food Law Court Cases

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The following are examples of court cases involving food. It is based on information available to David Jukes from a number of different sources.

IT IS NOT INTENDED TO BE COMPREHENSIVE.
THEY ARE NOT INTENDED TO REPRESENT IMPORTANT CASES.

The items are listed on the basis of the piece of legislation concerned in the case. The following headings are given below


Food Safety Act 1990 - Section 7

7 (1) Any person who renders any food injurious to health by means of any of the following operations, namely -
(a) adding any article or substance to the food;
(b) using any article or substance as an ingredient in the preparation of the food;
(c) abstracting any constituent from the food; and
(d) subjecting the food to any other process or treatment,
with intent that it shall be sold for human consumption, shall be guilty of an offence.

No cases are known which have used Section 7. It is difficult to bring prosecutions and in nearly every case where it might be used, it is much simpler for a case to be brought under Regulations rather than the general power of Section 7.

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Food Safety Act 1990 - Section 8

8 (1) Any person who -
(a) sells for human consumption, or offers, exposes or advertises for sale for such consumption, or has in his possession for the purpose of such sale or of preparation for such sale; or
(b) deposits with, or consigns to, any other person for the purposes of such sale or of preapration for such sale,
any food whcih fails to comply with food safety requirements shall be guilty of an offence.

8 (2) For the purposes of this Part food fails to comply with food safety requirements if -
(a) it has been rendered injurious to health by means of any of the operations mentioned in Section 7(1) above;
(b) it is unfit for human consumption; or
(c) it is so contaminated (whether by extraneous matter or otherwise) that it would not be reasonable to expect it to be used for human consumption in that state;
and references to such requirements or to food complying with such requirments shall be construed accordingly.

Listeria in Lanark Blue Cheese

The Food Safety Act 1990 contains the requirement that food must comply with food safety requirements (Section 8(1)). The definition of food safety requirements is then given (in Section 8(2)) and includes the requirement that food must not be "unfit for human consumption" (Section 8(2)(b)). If food is considered unfit, then it fails to satisfy the food safety requirements and a prosecution can then result.

Section 9 contains the provisions which allow for inspection and seizure of food. In Section 9(1) inspection is permitted and if, as a result of the inspection, it appears that the food fails to comply with food safety requirements, additional actions are permitted. Section 9(3) allows the seizure of the food and Section 9(6) provides for the inspectors to apply to a court for an order for the food to be condemned and disposed of if the court is convinced that the food does not satisfy the food safety requirements. If the court refuses to condemn the food, under Section 9(7) compensation shall be paid for the depreciation in the value of the food.

This case related to an application for a condemnation order following finding of listeria in Lanark Blue Cheese. Initial concern arose when, as a result of a survey of soft cheeses by Edinburgh District Council some contamination was found. The Council informed the Scottish Office Department of Agriculture and Fisheries who subsequently informed Clydesdale District Council since the cheese is manufactured in their District. The cheese is made from unpasteurised ewes' milk by Mr Errington trading as H J Errington and Co.

Further samples were then taken by both Edinburgh and Clydesdale District Councils and results indicated that 24 out of 25 samples contained Listeria monocytogenes with high colony counts. Clydesdale District Council discussed the results with Mr Errington who initially agreed to voluntarily withdraw the product because of the contamination. The Council then issued a press release and the Scottish Office issued a food hazard warning relating to the cheese in December 1994. In January 1995, Mr Errington withdrew his voluntary agreement and the Council then instituted formal proceedings. On the 6th February 1995, 50 samples were taken and sent for analysis at the Scottish Agricultural College. On the basis of the results, the Council applied for the cheese to be condemned since, in their view the results indicated high levels of Listeria monocytogenes which rendered the food unfit for human consumption.

The initial application to a Justice of the Peace led to an order for the cheese to be condemned. A subsequent Judicial Review hearing held that Mr Errington had been denied natural justice at the hearing and ordered that the matter be taken before a Sheriff.

The Application was therefore held before the Sheriff of South Strathclyde, Dumfries and Galloway, J Douglas Allan, at the Court in Lanark. Evidence was heard over a period of 19 days between 14th August and 31 October 1995 with judgment being given on the 5 December. The Sheriff refused to grant the order and ruled that the 44 batches of Lanark Blue cheese did not fail to comply with food safety requirements.

During the case, 26 witnesses were called and 253 productions (documents, etc) were provided to the Court.

To avoid a detailed argument on the drafting of the legislation, Counsel for both parties in the case, Clydesdale District Council (the Applicants) and Mr Errington (the Respondents), came to an understanding. They agreed that for the purposes of the application, food is "unfit for human consumption" within the meaning of Section 8 of the Food Safety Act 1990 if it is, or is likely to be, injurious to health.

Two main issues arose during the hearing:
1) Were the results upon which the Council based its application correct? and
2) Were the actual levels of Listeria monocytogenes in the cheese such as to make the food injurious to health?

1) The Test Results

The Council had sent samples to the Scottish Agricultural College (SAC) where these were analysed in February 1995. All 50 samples were analysed and Listeria monocytogenes was detected in all samples, with counts ranging from 10/g to 5.1 million /g. Four of the staff of the SAC gave evidence on behalf of the applicants. The Respondents submitted samples to a different laboratory (Analytical Services Centre (Food Park) Ltd). Their results were significantly lower with, in some cases nil/g being found and, in several others, less that 100/g.

In his ruling, the Sheriff listed several points which led him to conclude that the results from the Scottish Agricultural College were not credible and therefore could not be relied upon. These included the following:

a) Evidence from a French cheesemaker that if Listeria monocytogenes was present in the unpasteurised ewes' milk which was subject to Mr Errington's processes, one could expect only the presence or survival of the organism, but no multiplication. Thus the very high counts would have come from milk with high counts. At the levels detected in the cheese, the Sheriff concluded that there would have been signs of problems in the flock and/or the milk - he was satisfied that there were no such signs.
b) The apparent very great inconsistency of the results for the Lanark Blue cheese from the SAC which the Sheriff decided could not be explained on the basis of the raw material and the manufacturing process. Mr Errington also produces another cheese (Dunsyre Blue) from cows' milk in the same processing area. Contact between cheeses and transfer of some cheese material was considered inevitable. However, Listeria monocytogenes had not been found in the Dunsyre Blue cheeses. The Sheriff considered that, if there had been high levels of Listeria monocytogenes in the Lanark Blue cheese, then it would have affected the Dunsyre Blue.
c) Some problems with the procedures used at the SAC including the lack of a positive control through the spiral plater machine immediately before the tests, the lack of a negative control after the tests, and certain doubts relating to the adequacy of the sterilisation of the spiral plater machine between samples.
d) Conflict between the reported finding that all suspect colonies which were seen during the SAC tests proved to be Listeria monocytogenes whereas evidence from Analytical Services Centre indicated that other species were present (in one case Listeria monocytogenes represented only 61%).
Although the Applicants in cross-examination attempted to cast doubt on the Analytical Services Centre results, the Sheriff concluded that all of their results which were referred to in evidence were reliable and accurate.

b) Is the Cheese Injurious to Health?

The question before the Court was to decide if the eating of Lanark Blue cheese is, or is likely to be, injurious to health. The Sheriff indicated that this really led to the question as to whether all strains of Listeria monocytogenes are pathogenic or must be regarded as pathogenic. In the final submission to the Court by the Applicants, it was accepted that not all strains of Listeria monocytogenes are pathogenic.

However, the evidence presented to the Court concerned the secondary issue of whether all strains of Listeria monocytogenes must be regarded as pathogenic. The Sheriff stated that "this was the subject of much evidence, some of which was speculative and indeed contradictory".

The Applicants called Dr McLauchlin (clinical scientist and Head of Food Hygiene Reference Unit at Public Health Laboratory Service) as their main witness relating to this issue. The Sheriff however was not convinced by the evidence he provided. In his judgment, the Sheriff noted that the witness was not able to say and did not attempt to say that the consumption of Lanark Blue cheese is likely to cause illness. The Sheriff pointed to 3 reasons mentioned by Dr McLauchlin as to why all strains of Listeria monocytogenes should be regarded as potentially dangerous:

a) It was indicated that all serovars (except one) have been implicated in cases of human listeriosis. However, the Sheriff also heard evidence indicating that the use of serovars to classify different forms of the micro-organism had been largely superseded by alternative methods which indicated that basing conclusions on serovars was an unsatisfactory means of assessing pathogenicity.
b) It was indicated that the risk of death in patients infected by different serovars is the same regardless of serovar. The Sheriff dismissed this reason when he concluded that the data upon which the statement was made related to serovars and not strains and that the statistical data was therefore insufficient to be able to say anything of significance.
c) It was indicated that the majority of strains of Listeria monocytogenes were virulent. This the Sheriff discounted since there was conflicting evidence as to how many strains of the micro-organism actually exist. Dr McLauchlin in Court suggested 50-100 strains, in a report he had written he had indicated more than 500, in a report of a single experiment reference was made to 125 different strains in that experiment alone, and that an expert called by the Respondents suggested that there must be thousands of identified strains and hundreds of phage types. The definition of strain was therefore important but the Sheriff was unclear as to the definition used by Dr McLauchlin - he hence found it difficult to accept the contention by Dr McLauchlin that the majority of strains were virulent. The Sheriff also noted that the experiments used by Dr McLauchlin to support his view were not actually conducted to assess virulence of all strains but had been based on a selected set of strains. It could not therefore be determined what the result would have been if all strains had been tested.

The Sheriff noted that "pathogenicity" required three components: transmissibility from one host to another, infectivity where the organism overcomes the new host's defences, and virulence whereby the organism harms the host. The Sheriff was not satisfied with the suggestion that the strain of Listeria monocytogenes in the cheese was potentially pathogenic since it produced a certain toxin. Although the Sheriff accepted that the production of the toxin was necessary for pathogenicity other factors were also necessary. Other evidence relating to pathogenicity often failed to take all factors into account and could not therefore be relied upon to indicate true pathogenicity for humans

In summary therefore the Sheriff did not accept that the evidence was sufficient to take a decision on whether the consumption of the strains of Listeria monocytogenes found in Lanark Blue would , if eaten, cause harm. He stated that "the evidence does not support the claim that all strains of Listeria monocytogenes should be regarded as potentially dangerous - and hence likely to be injurious to health."

Finally, in support of this conclusion, the Sheriff considered the epidemiological evidence. There was no evidence that any person had suffered any illness related to the consumption of Lanark Blue. It was thought that 63,000 portions of the cheese must have been consumed and that no illness had been reported despite the publicity given to it. Although the Applicants suggested that the sample size was insufficient, no evidence was presented to the Sheriff to indicate that this was the case and he therefore reject the submission which he stated "seems to be contrary to common sense".

Other Issues

The Sheriff considered the context in which the judgement had to be made. He noted that some witnesses had advocated a policy which was close to a zero tolerance (as imposed by the United States of America and Switzerland). However this had not been incorporated by the Government in the Food Safety Act 1990

Indeed, the Chief Medical Officer had in February 1989 and December 1992 issued letters indicating that the risks of consuming Listeria monocytogenes could be addressed adequately from the public health point of view by warning those considered to be at risk. No attempt was made to ban the product concerned.

He also noted that Government policy requires that "Enforcement actions should be based on risk assessment and public health judgements, not on end product testing alone." No evidence suggested that the Applicants had conducted a risk assessment. However the Respondents had asked Dr North (a self-employed food safety advisor) to conduct such an assessment and he had concluded that there was no evidence which reliably confirmed that the Lanark Blue cheese sampled would be harmful to humans if consumed, and was therefore unfit for human consumption.

The Sheriff therefore concluded that the application for condemnation should be granted. He noted that this would permit the provisions relating to compensation to apply and that he was satisfied that none of the batches of cheese could be sold given the time the case had taken - they were therefore of no value.

Arising from the judgement, the Clydesdale District Council were satisfied that their officers took the correct action and had initially attempted a voluntary approach and that the case had only be taken as a last resort. No further legal action will be taken on the case.

Contaminated breakfast cereal

The Kellogg Company of Great Britain were fined 3,000 with costs of 1,600 at Bromley Magistrates Court on 30 October 1996. The case arose following a complaint by a customer when they found a sharp piece of metal in a packet of Kellogg's Frosties.

The customer sent the metal to their local Environmental Health Office on the 26 March and it was subsequently investigated by Julie Turner, an EHO with the London Borough of Bromley Environmental Health and Trading Standards Department. The product was manufactured at the Kellogg's factory in Trafford, near Manchester. The Home Authority, Trafford Environmental Health Department were informed on the 27 March 1996. A public analyst report on the metal stated that it was a stainless steel turning or drilling and both ends had sharp points and the sides were ragged. The presence of such a piece of metal in food was considered dangerous.

Packaging obtained from the customer indicated that the product (with a best before date of 6 December 1996) had been packed on the 6 December 1995. Investigations revealed that Kelloggs had received other complaints of a similar nature beginning in December 1995 and that the complaint was the 15th (out of a final total of 22). All complaint packages were labelled with the same date code having been manufactured on the same day.

During a formal interview Kelloggs stated that there had been a production line breakdown of a Frosties drier on the 6 December 1995 which caused the product to be contaminated with metal shingles. However the link between the complaints and the breakdown was not made until late March 1996, by which time there seemed little point to the Company in recalling the product. However the Department of Health was also aware of the problem and was involved in discussions.

Kelloggs confirmed that action had been taken at the time of the incident. Production had been stopped, the problem identified and rectified, a batch of product put on hold and subsequently sent to a specialist company for X-ray analysis. Checked product was subsequently released into the market place. However, the complaints later received related to packages produced outside the "Product Hold" time window although two were as a result of some packages which missed being sent to the specialist company.

Kelloggs pleaded guilty to the offence of "the sale for human consumption food which failed to comply with food safety requirements in that it was so contaminated that it would not be reasonable to expect it to be used for human consumption in that state" under Section 8 of the Food Safety Act 1990 and in mitigation said that the company had spent over 50,000 on measures to prevent a similar event recurring and had tightened up and improved relevant procedures.

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Food Safety Act 1990 - Section 14

14(1) Any person who sells to the purchaser's prejudice any food which is not of the nature or substance or quality demanded by the purchaser shall be guilty of an offence.

Earwig in Bottle of Milk

Lord Rayleigh's Dairy of Hatfield Peveral, Essex pleaded guilty at Colchester Magistrate's Court on 15th April 1996 to a charge of selling milk to the prejudice of the purchaser which was not of the substance demanded, in that it contained an earwig, contrary to Section 14 of the Food Safety Act.

The earwig was found by a consumer in Colchester who reported it to Colchester Borough Council Environmental and Community Services Department.

The dairy bottles about 140,000 pints per day and is regarded as one of the most modern in Europe having been built in 1990.

Officers from the council were sent a copy of the diary's HACCP plan for examination. They subsequently visited the dairy. However, on their visit the Quality Control Manager produced a different version and there was confusion over which version of the plan was actually in place.

The earwig had not been through the pasteurisation process so officers investigated the bottle-filling area. Neither HACCP plan had anything to say about the possibility of foreign matter getting into bottles after the bottle-scanners. When the officers looked at this area of the dairy they found a length of conveyor between the scanners and the filler on which empty bottles were often stationary for several minutes. This length of line was not covered and was directly underneath a large extractor fan in the roof, through which foreign matter on the roof could be blown. During the case, counsel for the Council said that dirt and insects could be blown into the filling section from outside and from two cross-beams in the roof.

Examination of the pest control records showed that the presence of earwigs had been noted previously and that some recommendations on preventative measures had not been actioned.

The firm admitted the offence. In mitigation the company regretted the incident saying that it was the first time an insect of this sort has fallen in. The company is now taking up Colchester Council's recommendations. The company supplies most major retailers and it was stated that "There is someone from one or other of the stores there almost every week. Never before has the problem of the bottling area been brought to the company's attention.

The company was fined 700 with costs of 300.

Health Food Firm Fined

A Brighton health food firm was fined 4,000 in the Brighton Magistrates' Court on 9 November 1995 for selling products with misleading labels.

Rio Trading Company (Health) of Nile Street, supplied a snack called a Buzz Bar to health food shops, which the packaging stated was covered in chocolate. But the 75p bar, which contained a natural stimulant called Guarana, was simply covered in a chocolate flavoured coating. For this, the firm was prosecuted under Section 14 of the Food Safety Act 1990 in that they sold a cereal bar not the nature demanded in that it was not covered with chocolate as stated on the label. The firm was fined 2,500 for this offence.

The firm also sold Guarana capsules, costing 3.99 for a box of 20, falsely labelled as a natural and potent nutrient. Brighton magistrates heard that Guarana was derived from a South American ground-nut seed and is not a nutrient. As a result, the company was prosecuted under Section 15 of the Food Safety Act in that they sold Guarana Capsules which bore a label that falsely described guaramine as a nutrient when, in fact, it is not so. For this offence they were fined 1,500.

East Sussex Trading Standards officer Claire Attridge told the court that her Department had given the company advice, but changes were not made to the labels of the two products.

Graeme Lewis, the managing director of the company admitted the offences. The company, which was founded in 1987 and has a 1.2 million turnover, was also ordered to pay 160 costs for the two cases.

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Food Safety Act 1990 - Section 15

15 (1) Any person who gives with any food sold by him, or displays with any food offered or exposed by him for sale or in his possession for the purpose of sale, a label, whether or not attached to or printed on the wrapper or container, which -
(a) falsely describes the food, or
(b) is likely to mislead as to the nature or substance or quality of the food,
shall be guilty of an offence.

Health Food Firm Fined

A Brighton health food firm was fined 4,000 in the Brighton Magistrates' Court on 9 November 1995 for selling products with misleading labels.

Rio Trading Company (Health) of Nile Street, supplied a snack called a Buzz Bar to health food shops, which the packaging stated was covered in chocolate. But the 75p bar, which contained a natural stimulant called Guarana, was simply covered in a chocolate flavoured coating. For this, the firm was prosecuted under Section 14 of the Food Safety Act 1990 in that they sold a cereal bar not the nature demanded in that it was not covered with chocolate as stated on the label. The firm was fined 2,500 for this offence.

The firm also sold Guarana capsules, costing 3.99 for a box of 20, falsely labelled as a natural and potent nutrient. Brighton magistrates heard that Guarana was derived from a South American ground-nut seed and is not a nutrient. As a result, the company was prosecuted under Section 15 of the Food Safety Act in that they sold Guarana Capsules which bore a label that falsely described guaramine as a nutrient when, in fact, it is not so. For this offence they were fined 1,500.

East Sussex Trading Standards officer Claire Attridge told the court that her Department had given the company advice, but changes were not made to the labels of the two products.

Graeme Lewis, the managing director of the company admitted the offences. The company, which was founded in 1987 and has a 1.2 million turnover, was also ordered to pay 160 costs for the two cases.

Faulty labelling by retailer

Three cases, all involving labelling issues, were brought against Tesco Stores by Essex County Council last year and on each charge the company was fined 1,000.

The Trading Standards Department only instituted proceedings after several samples of the various foods had been analysed, procured at different times and places in the County. The sampling demonstrated to the officers that the original adverse samples were not isolated incidents and that Tesco's systems were insufficient.

A Tesco representative indicated that the company had relied on its suppliers in Ireland, Wembly and Cambridgeshire to provide food with the correct specification. They added that it was an incident of three one-off matters and the company had spent a lot of time and money on investigations and remedial action. There was no question that the foods were not wholesome and indicated that they had no previous convictions of this type. They added that the offences were of a minor nature especially considering that Tesco had 58,000 products.

The company pleaded guilty to all the charges when the cases were heard at Colchester Magistrates Court on 17 June 1996. The first two related to sales contrary to Section 15(1)(a) of the Food Safety Act 1990 (labels falsely describing the food) and the third related to sales contrary to Section 15(1)(b) (labels likely to mislead as to the nature, substance or quality). The company was fined a total of 3,000 and ordered to pay costs of 857.

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Trade Descriptions Act 1968 - Section 1

Smoked Trout Served up as Salmon

The perseverance of officers of Somerset Trading Standards Department led to the conviction of Grants Smoked Foods, a smoked fish producer with an annual turnover of 10 million. The company from Cumbria were charged under the Trade Descriptions Act 1968 with supplying Scottish Oak Smoked Salmon to which a false trade description had been applied contrary to Sections 1(1)(a) and 1(1)(b) and Section 23. The cost to the company was 17,000 in court fines and prosecution costs. The case took three years to come before the courts and the trial, at Taunton Crown Court before Judge Jones, lasted 4 days.

Trading Standards were first called to the restaurant of the Carnarvon Arms in the West Country during December 1992 when the chef became suspicious over a supply of fish. Formal samples were taken from the same area and the Government Analyst, using DNA genetic fingerprinting technology, confirmed that the fish was rainbow trout. During the period up to the hearing on 21 March 1996, the company appeared to do everything possible to delay the case from coming before the courts. They first entered a plea of 'not guilty' and embarked on a number of procedures which led to delay. They insisted that the Government Chemist should examine the fish; they requested that a portion of the fish should be sent to their own specialists in America and Europe; they frequently changed the company who would represent them in court.

During the hearing (from the 21st to 26th March) they maintained that they had exercised all due diligence; that the filleter should have spotted the difference; and that their system of quality control met the requirements of the industry. However, this was not the first time prosecution under the Trades descriptions Act had been brought against the company.

The defence also argued on a technical point that rainbow trout belonged to the genus Onichorynchus - the same as the Pacific Salmon - but they began to lose the case when the Judge pointed out that the ingredients list stated "Atlantic Salmon". The defence then made a submission admitting the charges, but they attempted to accuse the filleter and prove due diligence. The jury found the prosecution's case proved and the Judge criticised the quality of the defence evidence and the time wasted by the company. He ordered full costs of 13.311 to the Trading Standards Department.

Following the prosecution, the Chairman of the Scottish Salmon Smokers' Association thanked the Department and praised the exemplary diligence and persistence of the staff in bringing the case before the courts. He indicated that considerable damage was being done to the reputation of the genuine quality food industry by the activities of what he described as food fraudsters and called for a strong independent quality system for the food industry similar to the French 'Appelation Controllee' for wine.

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This page was first established by David Jukes on 28 May 1996.
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