R Newby Foods Ltd v Foods Standards Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 16 August 2013 |
| Neutral Citation | [2013] EWHC 3694 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6923/2012 |
| Date | 16 August 2013 |
[2013] EWHC 3694 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Edwards-Stuart
CO/6923/2012
Mr H Mercer QC (instructed by Clarke Willmott) appeared on behalf of the Claimant
Mr J Coppel QC (instructed by Food Standards Agency) appeared on behalf of the Defendant
I have handed down two judgments in this case. The first judgment was dated 16th July 2013 and in that I referred some questions to the Court of Justice of the European Union on the meaning of the term "MSM" (mechanically separated meat) in EU law. The second judgment, given on 26th July 2013, concerned the claimant's application for interim relief.
By way of introduction I will repeat the first six paragraphs of my judgment of 16th July in which I said:
"1. Much of the meat that is on sale in today's shops in this country — and probably in other Member States of the European Union also — is the product of butchery by a machine, not by hand. According to the evidence in this case machines are not very efficient butchers, often leaving some 50% (and sometimes much more) of the meat on the bone. Unless this remaining meat is removed in some other way it will not be used as meat. It is, unfortunately, not cost effective in the mass market for this to be done by hand in the traditional way.
2. In the 1970s machines were developed that would crunch the bones and the residual meat against a perforated plate under high pressure, with the result that the lean meat, fat and bone marrow would be extruded in a form of slurry with a viscosity not dissimilar to that of a purée. This is known as mechanically separated meat ("MSM"). The consumer would not describe it as fresh meat.
3. However, within a couple of decades improved machines had been developed which could remove the residual meat from the bone without crushing the bones or liquefying the meat. The claimant has developed such a machine. By means of a vibrating piston, operating at a much lower pressure than the early crushing machines, the meaty bones are forced into contact with one another in such a way that most of the meat is removed from the bones by shearing forces. This meat, without any bone marrow, leaves the chamber via a perforated plate with 10 mm diameter apertures.
4. It is the claimant's case that the product that emerges is clearly recognisable as meat. It can be teased apart to reveal whole pieces of meat up to about 100 mm or more in length. The claimant submits that no-one would describe it as anything else.
5. The second stage in the claimant's process is to pass this meat through another machine that is effectively a mincer with 3 mm apertures. The extruded product looks like ordinary mincemeat. This product is known in the UK meat trade as "desinewed meat" (or DSM) because, as with most meat mincing operations, a substantial amount of sinew and gristle is caught and left on the inside of the machine.
6. Desinewed meat is regarded by many, including the Defendant, the Food Standards Agency ("FSA"), as being quite different from MSM produced by the high-pressure process described in paragraph 2 above."
Regulation (EC) No 853 of 2004
This regulation, dated 29th April 2004, lays down "specific hygiene rules for food of animal origin". Annex 1 to the regulation contains definitions. Paragraph 1.14 of those definitions is in the following terms:
"'Mechanically separated meat' or 'MSM' means the product obtained by removing meat
from flesh-bearing bones after boning or from poultry carcases, using mechanical means
resulting in the loss or modification of the muscle fibre structure."
Paragraph 1.15 of the same annex provides as follows:
"'Meat preparations' means fresh meat, including meat that has been reduced to fragments
which has had foodstuffs, seasonings or additives added to it or which has undergone
processes insufficient to modify the internal muscle fibre structure of the meat and thus to
eliminate the characteristics of fresh meat."
The principal issue in this litigation is whether the product of the claimant's two-stage process is "MSM" within the meaning of paragraph 1.14 or is fresh meat that satisfies the last part of the definition of "meat preparation" in paragraph 1.15.
The Relief Granted
In my judgment of 26th July I indicated that I was prepared to grant interim relief along the following lines:
"i) Notwithstanding the moratorium imposed on 4 April 2012[by the Food Standards Agency], the Claimant may sell the 51 tonnes of desinewed lamb meat held in storage as a meat preparation for pet food for consumption by cats and dogs only.
ii) The Claimant may continue to produce desinewed meat from pigs and poultry and to sell it as a meat preparation, provided that the Claimant complies with the hygiene requirements set out in Chapter 3 of Regulation (EC) No 853/2004, paragraph 3 (save for item (b) of that paragraph).
iii) The FSA is to be restrained from enforcing the moratorium imposed on 4 April 2012 against the Claimant in so far as to do so would prevent or inhibit the Claimant from acting as set out in (i) and (ii) above."
However, I was concerned that that such relief should not take effect without the European Commission having an opportunity to make representations to the court. I therefore made the following directions in the order of the 26th July. At paragraph 5 the order stated:
"The European Commission be permitted to intervene in these proceedings and have liberty to apply to object to the relief set out in this Order, provided such application is made within fourteen days of the date of this Order and such written submissions are filed and served within fifty-six days of the date of this Order.
6. Paragraphs 1–4 of this Order take effect fourteen days from the date of this Order, unless the European Commission makes an application in accordance with paragraph 5 of this Order. If the European Commission does make such an application, paragraphs 1–4 of this Order will not take effect until the Court has considered that application and made a further Order. If any such application is made by the European Commission, that application will be considered by the Court between 12 and 16 August 2013."
Today's Hearing
By a letter dated 9th August 2013 the Commission applied to intervene in these proceedings in accordance with the permission granted in the order. But it indicated that it did not propose to be present at today's hearing. I grant the European Commission permission to intervene in these proceedings.
In its letter the Commission made it clear that it was concerned at the interim relief that I was proposing to grant and made representations as to why it should not be granted. The FSA, who today is represented by Mr Jason Coppel QC, effectively adopts the objections made by the Commission and invites the court not to grant the relief that I had granted provisionally on a contingent basis in the order of 26th July.
For the sake of clarity I will set out the terms of the relief in that order. It was as follows. By paragraph 1:
"The Claimant be permitted to produce desinewed meat from pigs and poultry and to sell such desinewed meat as a meat preparation pursuant to paragraph 1.15 of Annex I of Regulation (EC) 853/2004 ('the Regulation') using the same process and raw materials as it did before the moratorium imposed on 4 April 2012 ('the Moratorium'), provided that the Claimant comply with the following hygiene requirements:
a. Raw material for deboning must be no more than five days old from the pack/cut date. However, poultry carcases must be no more than three days old.
b. If not used immediately after being obtained, the product must be wrapped or packaged and then chilled to a temperature of not more than 2 °C or frozen to an internal temperature of not more than minus -18 °C. These temperature requirements must be maintained during storage and transport.
c. The Claimant carries out analysis demonstrating that the product complies with the microbiological criteria for mince meat adopted in accordance with Regulation (EC) NO 852/2004.
2. The Claimant be permitted to sell the 51 tonnes of desinewed lamb meat held in storage as a meat preparation pursuant to paragraph 1.15 of Annex I of the Regulation for pet food for consumption by cats and dogs only.
3. The Defendant suspend the application of, and be restrained from enforcing, using its powers in the Food Hygiene (England) Regulations 2006 (as amended), the Transmissible Spongiform Encephalopathies (England) Regulations 2010, and the Food Labelling Regulations 1996 (as amended) or otherwise, the Moratorium against the Claimant and other Food Business Operators using the Claimant's product, in so far as to do so would prevent or inhibit the Claimant from acting as set out in paragraphs 1 and 2 above.
4.The Defendant communicate to other relevant public bodies the limited suspension of the moratorium referred to in paragraph 3 so as to permit the Claimant to act as set out in paragraphs 1 and 2 above."
The principal purpose of this hearing, now that I have granted the Commission's application to intervene, is to reconsider the question of whether the interim relief set out in that order should still be granted in the light of the decision taken by the Commission.
I can deal with paragraph 2 of the order straightaway, that is the provision relating to the 51 tons of desinewed lamb meat. I propose to adjourn...
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