Food and drugs: food unfit for human consumption

The Supreme Court referred two questions to the Court of Justice of the European Union, in a dispute concerning the available means of challenging a decision that a slaughtered carcass was unfit for human consumption. The questions were: (i) whether Regulation (EC) 854/2004 and Regulation (EC) 882/2004 precluded a procedure whereby, pursuant to s 9 of the Food Safety Act 1990, a Justice of the Peace decided on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements; and (ii) whether Regulation (EC) No 882/2004 mandated a right of appeal in relation to a decision of an official veterinarian, under art 5.2 of Regulation (EC) No 854/2004, that the meat of a carcass was unfit for human consumption and, if it did, what approach should be applied in reviewing the merits of the decision taken by the OV on an appeal.

In September 2014, the second appellant company (CMC) purchased a bull at a market. The bull was passed fit for slaughter by the Official Veterinarian (the OV) at CMC’s slaughterhouse, and was then slaughtered. A post-mortem inspection of the bull was carried out by a meat hygiene inspector (the MHI). After discussion with the MHI, the OV declared the meat unfit for human consumption.

CMC challenged the OV’s opinion. It claimed that, in the event of a dispute and its unwillingness to surrender the carcass voluntarily, the OV would have to seize the carcass under s 9 of the Food Safety Act 1990 (the FSA 1990) and take it before a Justice of the Peace to determine whether or not it ought to be condemned. The respondent Food Standards Agency (the FSA) replied that there was no need for it to use such a procedure.

In September 2014, the OV, acting for the FSA, served on CMC a notice for the disposal of the carcass as an animal by-product (the disposal notice), under reg 25(2)(a) of the Animal By-Products (Enforcement) (England) Regulations 2013, SI 2013/2952 and Regulation (EC) No 1069/2009.

CMC commenced proceedings for judicial review together with the first appellant, which was a trade association acting for around 150 slaughterhouses. The appellants challenged the FSA’s assertion that it was unnecessary for it to use the procedure set out in the FSA 1990 s 9, and contended that it was incumbent upon the UK to provide a method of challenging the OV’s decisions in such cases. The appellants failed on first instance (see [2015] All ER (D) 41 (Jul)) and on appeal (see [2017] All ER (D) 08 (Jul)), and appealed to the Supreme Court.

Whether, first, the procedure contained in the FSA 1990 s 9 was available in the circumstances, and whether it had to be used by the OV or the FSA, if the owner of a carcass refused to surrender the carcass voluntarily, so as to afford the carcass owner a means of challenging decisions of the OV with which it disagreed.

Second, whether use of the procedure in the FSA s 9 was compatible with the food safety regime laid down by European Union law, specifically by: (i) Regulation (EC) No 852/2004; (ii) Regulation (EC) No 853/2004; (iii) Regulation (EC) No 854/2004; (iv) Regulation (EC) No 882/2004; and (v) Regulation (EC) No 1069/2009.

Third, whether Regulation (EC) No 882/2004 mandated an appeal procedure and, if so, whether such an appeal ought to be capable of challenging the OV’s decision on the full factual merits, or whether the more limited scope of challenge involved in judicial review of the OV’s decision and of a disposal notice was sufficient to comply with the requirements of Regulation (EC) No 882/2004.

In the circumstances, it was appropriate to refer two questions to the Court of Justice of the European Union (the CJEU). For the questions, the CJEU would be asked to assume that the appellants’ interpretation of the SFA 1990 s 9 was correct, and that a Justice of the Peace had power to give a ruling which might result in an award of compensation if he considered that a health mark ought to have been applied to a carcass.

The first question was whether Regulation (EC) 854/2004 and Regulation (EC) 882/2004 precluded a procedure whereby, pursuant to the FSA s 9, a Justice of the Peace decided on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements.  

The second question was whether Regulation (EC) No 882/2004 mandated a right of appeal in relation to a decision of an OV under art 5.2 of Regulation (EC) No 854/2004 that the meat of a carcass was unfit for human consumption and, if it did, what approach should be applied in reviewing the merits of the decision taken by the OV on an appeal in such a case (see [22] of the judgment).

Booker Aquaculture Ltd v Scottish Minsters: C-20/00 and C-64/00 [2003] All ER (D) 171 (Jul) considered.

Stephen Hockman QC and David Hercock (instructed by SAS Daniels LLP (Stockport)) for the appellants.

Alan Dashwood QC, Adam Heppinstall and Jonathan Lewis (instructed by the Foods Standards Agency) for the FSA.

Toby Frost - Barrister.