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False or misleading description of Food | Food Crime

A number of prosecutions of Supermarkets and Manufactures for offences of Food Crime relate to allegations of false or misleading labelling of Food. Although the complains often related to failures that do not seem to be particularly large, there are acceptable tolerances within the legislation. Bearing in mind the production lines of major manufacturers often produce many hundreds of millions of items per year, the profit to me made from such infraction can be substantial, and great care must be taken to avoide production process errors, and to have in place a proper and transparent due diligence system.

At present the main offences used to prosecute Food Crime relate to allegations of false or misleading labelling of Food. It is anticiated however following the recent 'Horsegate' scandal related to contaminated food, that a new offence of failing to propery manage the supply chain will be brought onto the statue books. 

Although Section 15 of the Food Safety Act creates an offence where any person labels or advertises food in a way that falsely describes it, or labels, advertises or presents food in a way which misleads as to its nature, substance or quality.

The offence can occur when statements are untrue or pictures of food are presented in a misleading way. The offence also covers material that is led to the wrong conclusion.

Other offences used in Food Crime:

The Consumer Protection from Unfair Trading Regulations [CPRs] 2008 apply to commercial practices before, during and after a contract is made. The CPRs contain general prohibitions of misleading and aggressive commercial and, in particular, contain prohibitions of misleading and aggressive commercial practices.

They also prohibit 31 specific commercial practices that are listed in chapter 6 on banned practices. These prohibitions are explained in more detail in Part 2 of the OFT Guidance that is available by clicking here.

Broadly speaking, if consumers are treated fairly, then traders are likely to be complying with the CPR. This means that fair-dealing businesses should not have to make major changes to their practices. However, if a trader misleads, behaves aggressively, or otherwise acts unfairly towards consumers, then the trader is likely to be in breach of the CPR and may face action by enforcement authorities.

There are 31 commercial practices listed in Schedule 1 to the CPR which because of their inherently unfair nature, are prohibited in all circumstances.

By contrast, for a commercial practice to be a breach of the other two prohibitions mentioned above – the general prohibition, and the prohibition on misleading and aggressive practices – the trader must exhibit the conduct specified in the prohibition, and the practice must have, or be likely to have, an effect on the behaviour of the average consumer.

Misleading Actions (regulation 5)

Giving false information to, or deceiving, customers. A misleading action occurs when a practice misleads through  the information it contains, or its deceptive presentation, and causes or is likely to cause the average consumer to take a  different decision.

The Act creates a number of offences which are of strict liability, so the prosecution only have to demonstrate there has been a prohibited act or omission.  There is therefore available the defence of Due Diligence.

To be able to rely upon the defence of Due Diligence, the person accused must prove that the commission of the offence was due  to a mistake, reliance on information given by another  person, the act or default of another, an accident, or another  by criminal offences cause beyond his control, and, in addition, that he took all reasonable precautions and exercised all due diligence to avoid committing the offence or to avoid someone under his control committing it.

The enforcer prosecuting the offence must be given written notice of a defence based on the actions of a third party seven days in advance of the hearing.

It is not sufficient to show that due diligence procedures are in place, it is also necessary to show that they are applied in practice. Courts are likely to expect different standards of due diligence from businesses of different size.

Weights and Measures Act 1985

The Weights and Measures Act 1985 is the main piece of legislation covering weights and measures controls in the UK. The Act provides a framework for the regulation of transactions based on quantity, including the type and manner of quantity information to be provided, the quantiies which may be sold and the units of measurement to be used.

The Act sets out offence in s 30(1) a for any person who has goods in his possession which has goods in a container marked with a statement in writing with respect to quantity. Section 32 provides for where the offence is due to the act or default of some other person, the other person may be charged and convicted of the offence whether or not proceedings are taken against the first named person ( here Tesco).

Again, there is a potential Due Diligence defence set out in section 34 (1) and (2) of the Act, which provides for the service of a notice if the act or default was due to reliance of another.

The Weights and Measures (Packaged Goods) Regulations 2006

The Directives set out three rules with which packers must comply:

  • the actual contents of the packages should not be less, on average, than the nominal quantity;
  • the proportion of packages which are short of the stated quantity by a defined amount (the Tolerable Negative Erroror TNE) should be less than a specified level; 
  • and no package should be short by more than twice the TNE.

The new Regulations place packers under a duty to comply with the three rules. Packers may use whatever quantity control and checking procedures they find convenient, so long as these are sufficiently rigorous to ensure compliance with the three rules. As before, Trading Standards officers may carry out reference tests where they consider this appropriate to check compliance with the first two rules.

Packers and Importers have obligations under the Rules to ensure that testing is undertaken to control the ‘Average Quality’ and the proportion of packages with a deficiency of more than the TNE. Guidance on the control systems that are appropriate is contained in the Appendices.

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