Tesco has been fined £7.5 million ($10.4 million) for selling food past its use-by date at three stores in an English city.

The retailer pleaded guilty at Birmingham Magistrates Court in September 2020 to 22 offences and was fined this past week. The violations included 67 items of out-of-date food being on sale between 2015 and 2017 in three store locations.

The first incident at a Tesco Express saw Birmingham City Council environmental health officers (EHOs) visit the store in June 2015 after a public complaint and they found six items on display beyond their use-by dates.

They were invited back for another check in April 2016 when they found various items including own-brand pizza, soup, pork belly slices, potato salad, trifle and flavored milk, out of date for between one to 17 days.

Missed opportunities to remove products
A separate complaint in May 2017 led to a visit to a Tesco Metro store in June wher 25 items displayed for sale beyond their use-by dates were discovered including own-brand scotch eggs, quiche lorraine, and Little Dish chicken and vegetable risotto and pasta bolognaise which were children’s meals.

At the third store, own-brand falafel and hummus wraps, grapes and strawberries, and berry medley pots were on sale past their use-by dates in June 2017 with mold found on grapes.

Mark Croxford, head of Environmental Health for Birmingham City Council, said the case sends a warning to retailers to ensure their stock is in date and if they are found to be breaching the rules action will be taken.

“The manufacturers put the date on their products to guarantee the food is safe and ignoring this date completely undermines consumer safety. There were numerous missed opportunities to check the dates on these products and remove them from display – and the fact incidents were found on several occasions, in different stores and over 14 months, is a major concern.”

Judge Shamim Qureshi said the decision from Tesco to invite EHOs back in 2016 after the 2015 incident was an “own goal” because out of date items were found again.

Richard Reichman, a partner at BCL Solicitors LLP, said this is a surprisingly common feature in food safety cases and urged businesses to be careful when inviting a regulator back to re-visit and not to do so prematurely.

Judge: A reluctant guilty plea after running out of options
Qureshi said he agreed that Birmingham City Council had been made to jump every conceivable hurdle.

“Tesco has tried to avoid being prosecuted and avoided pleading guilty at the earliest opportunity for the 2016 offences. They tried Hertfordshire County Council, the Office for Product Safety and Standards and the High Court but failed dismally,” he said.

“In my view it is not that they have been uncooperative, but my criticism is that this guilty plea must rank as probably the most reluctant guilty plea in legal history. Since 2014 the law has been absolutely clear that food cannot be sold after the use-by date. Tesco says the law needed to be clarified. It was crystal clear but Tesco tried to make it confusing.

“Tesco are only pleading guilty because they have run out of options. The Sentencing Council desperately needs to introduce another table into their sentencing tables. They need to give guidance on multi-billion pound companies.”

The retailer has an overall good safety and hygiene record as offences were at three of its 2,900 stores and it took steps to reinforce training and resolve problems in 2016 and 2017, added Qureshi.

Out of date food still safe to eat?
Tesco used evidence in their defense from food microbiologist Slim Dinsdale, who compared the cotton-like mold on grapes to the mold in blue cheese and found food was not unsafe to eat after the use-by date.

Qureshi said this was at odds with the feeling of disgust that the public would have on seeing the mold on grapes.

“If I am wrong about that, then perhaps someone might pioneer a new market amongst the public for moldy grapes to be eaten with moldy cheese, moldy biscuits and pungent wine.”

Tesco, which could appeal the fine, said it was disappointed that a small number of out-of-date products were found on sale in three stores.

“The safety of our customers is always our priority and these incidents are not representative of the high standards of safety and quality we expect in Tesco stores.”

Katie Vickery, International Regulatory and Compliance Partner at Osborne Clarke, said it is a challenge for a business of scale to ensure there is no food beyond its use-by date on shelves.

“While technology has helped in recent years, typically this is a manual process and people make mistakes. Legally the position is that if you sell food that is beyond its use-by date you commit an offense,” she said.

“Tesco tried to challenge this last year when it argued in the Divisional Court that the law was wrong to presume that food that was past its use-by date was automatically unsafe. Tesco presented compelling evidence from a leading microbiologist that the out-of-date food found in the stores in Birmingham was still safe to eat. The Divisional Court disagreed and confirmed that simply selling food past its use-by date was enough to commit the offense.”