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Have food waste laws passed their use-by date?

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Poverty is on the rise in the UK. Indeed, poverty is becoming such a serious issue that the media, researchers and politicians have split the concept into categories; figures for child poverty, for example, are staggeringly high, and more than one million working households are now facing fuel poverty. Food poverty, however, has had a particularly damaging effect on societys most vulnerable. Long-forgotten medical conditions, such as rickets, reappeared in the UK last year as a consequence of food poverty and malnutrition.

The shocking truth is that, whilst the poor go hungry, tonnes of food and drink is thrown away each year. We are not talking about a few hundred tonnes, or even a few thousand. 7.2 million tonnes of food and drink, most of which could be consumed, is thrown away by British households each year. Householders are not the only ones to blame. Supermarket giants generate huge amounts of food waste. Most are particularly secretive about their waste figures, but it has been revealed that, in 2013, Tesco threw away 300,000 tonnes of food waste in six months. There seems to be a direct conflict here: why are we wasting so much, when there are so many vulnerable people who need help?

This conundrum has prompted an adventurous response from food waste campaigners. ‘Skipping- jumping into a supermarkets skip in order to retrieve edible food – has become popular, and has resulted in a new breed of cafes, where customers pay what they can or want to for meals that are made using edible food waste. The Real Junk Food Project in Leeds kickstarted the movement, and has fed 10,000 people using 20,000 tonnes of edible food that had been disposed of. Although the project has been highly successful, and indeed has inspired others to follow their example, there are legal issues concerning the use of waste food. This article will examine these issues and consider whether the law as it stands is a hindrance to addressing the problem of food poverty.

Is Using Food Waste Legal?

The answer is here depends on your definition of “food waste”.

Whether food is considered edible or not depends on whether it has passed its ‘use byor ‘sell bydate. Food products that have gone past this date should not be consumed for health and safety reasons. The law attempts to protect consumers from this by criminalising the sale of food or drink that has exceeded these limits under s. 44 of the Food Labelling Regulations 2006. Selling this sort of food waste is, therefore, illegal.

However, not all food waste has gone passed its ‘use bydate. A principle cause of food waste generation is confusion between the ‘use byand ‘best beforedates on food labelling. The ‘best beforedates on packaging merely provide guidelines for consumers on when best to eat the product; it is not illegal to sell products after this date. However, many customers do not understand or even take note of the difference. Large supermarket chains have been accused of needlessly throwing out food approaching its ‘best before’ date simply to prevent customers complaining about “freshness”.

According to saynotofoodwaste.org, their research conducted with supermarkets’ representatives has shown how powerful consumer habits can be on food waste generation. For example, according to one Costco manager, supermarkets would rather ‘throw away food that is close to its ‘sell by’ date, than ruin their reputation trying to teach consumers what it means through personal exposure.’

So as long as The Real Junk Food Project and other food campaigners are using products that have not exceeded their ‘use by’ dates, selling edible food waste is not a criminal offence. As all food packaging states a ‘use by’ date, it would be easy for food campaigners to figure out which products are still edible. However, it is a concern that there are very few ways in which this is being checked. Although ‘best before’ dates serve as guidelines for consumption, ‘use by’ dates are necessary in order to protect people from eating spoiled food. This is not just an issue of something being tasty; spoiled food produces toxins, which can make consumers very ill. Greater transparency of food waste sourcing is needed as a matter of consumer safety. It is likely, however, that this will only develop if supermarkets and other stockists improve their relationships with food waste eateries. Hostility between the two makes sourcing food waste difficult and, potentially, fraught with criminal liability.  

Is Using Someone Else’s Food Waste Illegal?

The “skipping” trend and cafes like The Real Junk Food Project often source their food and drink from supermarket food disposal areas.

Last year, three men were charged under what The Guardian termed ‘an obscure section of the 1824 Vagrancy Actfor “skipping” in the bins of the supermarket Iceland. The charges were subsequently dropped due to a public outcry. However, the fact remains that the men were charged with a criminal offence in the first place. Taking edible food from supermarket bin, therefore, could lead to prosecution if public interest warranted such an action.

There is the potential for another criminal offence to be committed here as well. Previous jurisprudence has reflected on the question of whether taking property from a rubbish bin for gain should constitute as theft. In Williams v Phillips (1957) the court held that dustbin collectors had stolen property from rubbish bins. The property in a bin is not abandoned; it remains the householdersproperty until it is removed, and thereafter becomes the property of whichever organisation had been contracted to remove it. The precedent of this case suggests that taking food produce from someone elses bins can constitute a criminal offence.

Additionally, under Section 1 of the Theft Act 1968:

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it;

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

This means that, if it can be shown that taking property out of a bin constitutes theft, then it does not matter if the property was not taken for the thiefs own benefit. It would not affect the potential charges, therefore, that café owners were taking food for the benefit of others, even if they were vulnerable or at risk of malnutrition. This appears to offend a typical notion of justice because projects like The Real Junk Food Project are providing a social benefit out of produce that would otherwise be wasted, and yet they risk prosecution.

Should Food Waste Policies Provoke Change in the Law?

Earlier this month, the Government updated its policies tackling food waste in the UK:

We are working with Waste and Resources Action Programme’s (WRAP) and businesses on voluntary agreements to reduce food and packaging waste providing ideas and information to help waste less, through the WRAP’s Love Food, Hate Waste campaign.

The UK is not alone in attempting to reduce food waste. The European Commission has estimated that, in 2014, the EU produced 100 million tonnes of food waste.

For example, the EU Waste Framework Directive ‘requires member states to take appropriate measures to encourage firstly, the prevention or reduction of waste production and its harmfulness and secondly the recovery of waste by means of recycling, re-use or reclamation or any other process’.

The problem of food waste is not confined to Europe. The World Resources Institute (WRI) recently reported that approximately one-third of all food produced worldwide, worth around US $1 trillion, gets lost or wasted in food production and consumption systems.

Although legislation varies across the world, in Massachusetts, US a ban affecting food waste disposal seems to have produced an innovative way of dealing with inedible food waste. According to the Office of Energy and Environmental Affairs:

The ban will divert food waste to energy-generating and composting facilities and reduce the Commonwealth’s waste stream.

The ban, regulated by the Massachusetts Department of Environmental Protection (MassDEP), will require any entity that disposes of at least one ton of organic material per week to donate or re-purpose the useable food. Any remaining food waste will be shipped to an anaerobic digestion (AD) facility, where it will be converted to clean energy, or sent to composting and animal-feed operations.

Although the regulation only applies to Massachusetts, it could prove to be influential in other jurisdictions. Such regulation would work well in the UK, as it would help to provide clean energy and feed vulnerable people.

Clearly, there is both national and international pressure to reduce food waste, and the ethical issues attached to it, in modern society. The problem is that our criminal justice system in England and Wales has not been altered to encourage waste reduction policies. Moreover, it is not clear that there has been any real progress is terms of food labelling laws. Although use-by dates are necessary for consumer safety, the problems that result from use-by and best-before date confusion have not been addressed.

Conclusion - What Next?

This is not an issue of simply eradicating best-before labelling on food and drink. One of the crucial concerns for supermarkets and producer providers, as this article has shown, is that customers will complain about quality or the “freshness” of food. Indeed, as much as those selling food are to blame for wasting edible food, we cannot ignore the staggering amount of edible food that households waste. Food waste, and the conundrum of how to reduce it, is therefore an issue which strikes right to the heart of the home. Effort needs to be injected into teaching people how to cook, how to store food correctly and even how to tell whether food is ripe. Oddly shaped or coloured fruit and vegetables, dusty tins with approaching use-by dates, or focusing on learning to love your freezer will help to change attitudes and reduce food waste. The fact that food, cooking and nutrition are back on the national curriculum represents a positive step forward in the fight against food waste. Indeed, increasingly popular cooking or baking television shows seem to be consolidating the fact that good food is having a moment in the limelight.

However, in order to make these advances, it is clear that the law needs to change. The criminal law, as discussed in this article, does not reflect social opinion or connotations of natural justice. Instead, the criminal law should be used in order to prevent food waste; fining supermarkets for producing more than a stated amount of food waste, for example. This will help to encourage greater awareness of edible food waste, and simultaneously provide incentives for supermarkets to influence customersbuying habits. That is not to say that the law should leave the job entirely up to the supermarkets, but, in the infamous words of one of the main culprits, ‘every little helps.

Projects like The Real Junk Food Project have injected life into the food waste movement, bringing the obvious conflict between vulnerable people and unnecessary waste into the light of the media. Some legal questions will have to be answered as other projects spring up across the country. It is clear that government policy and the law have to change in order to meet this challenge, otherwise it appears that the creative individuals tackling food waste will be exposed to the threat of prosecution.

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Tagged: Commercial Law, Criminal Law, European Union

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