The Queen (on the application of Newby Foods Ltd) v Food Standards Agency
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edwards-Stuart |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] EWHC 1966 (Admin) |
| Docket Number | Case No: CO/6923/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 July 2013 |
[2013] EWHC 1966 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Edwards-Stuart
Case No: CO/6923/2012
Hugh Mercer Esq, QC & Andrew Legg Esq (instructed by Clarke Willmott LLP)) for the Applicant
Clive Lewis Esq, QC & Michael Lee Esq (instructed by Food Standards Agency) for the Respondent
Hearing dates: 22 nd & 23 rd May 2013; 20 th June 2013
Introduction
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.
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.
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.
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.
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.
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 853/2004 of 29 April 2004 lays down "specific hygiene rules for food of animal origin". Annex I to the Regulation contains definitions 1. By paragraph 1.14:
"'Mechanically separated meat' or 'MSM' means the product obtained by removing meat from flesh-bearing bones after boning or
from poultry carcasses, using mechanical means resulting in the loss or modification of the muscle fibre structure."
By paragraph 1.15:
"'Meat preparations' means fresh meat, including meat that has been reduced to fragments, which has had foodstuffs, and 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 case 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 preparations in paragraph 1.15.
The positions of the parties
The view taken by the EU Commission, as stated in written evidence from the Director-General of the Health and Consumers Directorate-General to the House of Commons Environment, Food and Rural Affairs Committee, is "that any loss or modification of the muscle fibre structure" results in a product that must be considered to be MSM 2. It was stated also in the same document that "MSM is very sensitive to bacterial growth because of the raw material and the production process involved". 3
The claimant's position, which until early 2012 was also the position taken by the FSA, is that it is only if there is significant"loss or modification of the muscle fibre structure", that the product is to be treated as MSM.
In support of this position, the claimant submits that a change is significant only if it is sufficient "to eliminate the characteristics of fresh meat" and thus takes the product out of the definition of "meat preparations" in paragraph 1.15.
The claimant submits also that to treat desinewed meat as MSM results in a substantial waste of meat that is acceptable for human consumption as fresh meat.
The evidence before the court shows that loss or modification of the muscle fibre structure of meat can be the result of many processes: for example, freezing and thawing, chopping and mincing. But each of the processes of freezing/thawing, chopping and mincing of fresh meat does not usually eliminate the characteristics of that meat: I do not imagine that anyone would suggest that a steak tartare is not fresh meat, but on the evidence in this case the process of chopping the beef would cause some measurable loss or modification of the muscle fibre structure. The meat used in steak tartare is not classified as MSM because it does not fall within the opening words of paragraph 1.14 of Annex I to the Regulation, not because there has been no loss or modification of the muscle fibre structure.
Thus the effect of the Commission's interpretation of paragraph 1.14 of Annex I to the Regulation is that any mechanical separation of meat from the bone after initial deboning, even if carried out without any damage to the bones themselves or extraction of bone marrow, will produce a product that has to be classified as MSM. That greatly reduces its commercial value.
The Commission would doubtless say that the merit of its approach is that it is clear: there can be no room for misunderstanding. By contrast, the approach contended for by the claimant, formerly supported by the FSA, means that whether or not the product of the mechanical separation is to be classified as MSM has to be the result of an individual assessment of the results of the particular process employed.
By way of background, it seems that in early 2012 the claimant and the FSA were not alone in their concern about the Commission's approach to the classification of MSM. At a meeting of the Commission Working Group on Implementing Measures of the Hygiene Regulations held on 9 March 2012, the Commission sought the views of Member States on MSM. A summary of the meeting indicates that whilst several Member States did not provide an opinion and said that they would respond in writing, a significant majority of those who spoke at the meeting were in favour of considering low pressure MSM as falling within the definition of "meat preparations" (in line with UK views). It was noted also that in many cases this was a change in their position.
The impact on this case
It is clear that the primary issue raised by the claimant in these proceedings is whether or not the de-sinewed meat that it produces as a result of its two stage process is properly classified as MSM within the meaning of paragraph 1.14 of Annex I to the Regulation.
If the Claimant's product were, as a matter of EU law, to be classified as MSM under paragraph 1.14 of Annex I of Regulation (EC) No. 853/2004 rather than as a "meat preparation" pursuant to paragraph 1.15 of that Annex, this would mean that:
i) the Claimant cannot use ruminant bones in the production of its product (see Annex V to Regulation (EC) No. 999/2001 as amended by Regulation (EC) No. 722/2007);
ii) the Claimant has to comply with the raw material and hygiene requirements which apply to MSM, rather than those which apply to meat preparations (see chapters II and III, section V, of Annex III to Regulation (EC) No 853/2004); and
iii) the Claimant's product is excluded from the definition of "meat" for labelling purposes (see Annex I to Directive 2000/13/EC as amended by Directive 2001/101/EC).
But that is not the only issue. The claimant also challenges the FSA's decision to implement the Commission's interpretation of the Regulation on a number of different grounds. For the purposes of this judgment, it is not necessary to go into the details of those claims. It is sufficient for me to say that some of them, at least, can succeed only if the claimant's interpretation of paragraph 1.14 is correct.
The facts in outline
In September 2003 the FSA issued Guidance Notes on the Labelling and Composition of Meat Products. In the Guidance Notes there was a section headed "What about mechanically recovered meat (MRM)?". This section contained the following paragraphs:
"Products obtained by mechanical deboning, which remove definitive pieces of meat from meaty bones or carcass, which may or may not have had the primal muscles previously removed, such that the muscle fibre structure of the meat is substantially intact are not considered to be MRM or MSM. This meat may then be desinewed and have the appearance of finely minced meat.
These products may still be considered meat, and may be counted towards the QUID declaration."
(QUID stands for Quantitative Ingredient Declarations.)
From about April 2006 the claimant was approved by the FSA to produce...
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