Newly-consolidated date-labelling guidelines aim to help reduce food waste, but do nothing to allay the fear of prosecution which makes manufacturers more, rather than less, cautious in this area, according to one legal expert.
The guidance on the application of date labels was published by the Waste & Resources Action Programme (WRAP), the Food Standards Agency (FSA) and Department for Environment, Food and Rural Affairs (DEFRA) for a ‘consultation’ period which lasted less than a month, up to August 3.
At law firm DWF, partner in the regulatory department Hilary Ross pointed out that UK manufacturers remained “hamstrung” by clauses in the EU’s Food Information to Consumers (FIC) regulation establishing an automatic link between use-by dates and food safety. The FIC has been in force in the UK since 2014. Prior to that, no such strict link existed in UK law. “Industry appeared to have persuaded DEFRA that there might be a link, on a case-by-case basis, but not automatically,” said Ross. But in fact, DEFRA supported precisely that automatic link at EU level, helping to ensure it was incorporated into the FIC. ‘Immediate danger to human health’ She explained: “If the product is likely after a short period to constitute an immediate danger to human health, then [manufacturers] need to apply a use-by date.”
Otherwise, a best-before date or other ‘durability indication’ can be substituted. But there is no definition of a ‘danger to health’, which might be interpreted simply as whatever induces retching or vomiting. “Manufacturers tend to err on the side of caution and apply a use-by date, because there is a lack of guidance,” said Ross.
The calculation of a use-by date had to take into account not only the type of food, but how it might be treated through the supply chain and by the consumer, she said. Ross warned: “If manufacturers apply a use-by date, when a food is past that date, regardless of whether it does pose a danger or not, the law states it will be deemed unsafe automatically. To really stop waste, we need to unpick this automatic link.” For its part, WRAP lists categories such as fresh cream and ready meals where there “is an expectation” that a use-by date will be applied, because of microbiological risks. But it adds that best-before dating will be appropriate for “the vast majority” of foods. ‘Help reduce food waste’ “I’m sure WRAP is trying to help reduce food waste, but they’re doing this against a very strict legal background,” said Ross. She added: “Everyone in the industry is even more cautious now, because of the new sentencing guidelines published in 2016.
The fines for food safety breaches are proportioned to turnover, but they can be extremely high.” Meanwhile, regarding the status of the guidance as a consultation, director of the Chilled Food Association Kaarin Goodburn – who was on the working group behind the document – said: “It’s nice to be asked. We set out not to change anything but simply bring the different elements of guidance together.” She added that having a ‘consultation’ was a good way of attracting attention, and pointed to the number of WRAP ‘reports’ that had received little coverage over the years.