A judge has slammed Tesco’s ‘implausible defence’ in court after three stores sold out of date food to Birmingham customers.
The damning criticism came as the supermarket chain was fined £7.5m for failing to remove dozens of items past their ‘use by’ date at shops across the city.
The grim discoveries included children’s meals, soup that should have been removed 17 days earlier and a pack of mouldy grapes.
A total of 67 expired products were discovered; 29 at the Express store on Linden Road, Bournville in 2016, 25 at the former Metro store in Rubery in 2017, and 13 at the Express shop in Carr’s Lane in the city centre in 2017.
Tesco Stores Ltd. admitted 22 charges under the Food Safety and Hygiene Regulations.
But passing sentence at Birmingham Magistrates’ Court today District Judge Shamim Qureshi heavily criticised the company for ‘trying to avoid being prosecuted’ and making Birmingham City Council ‘jump every conceivable hurdle’.
He said: “Tesco denies it has not cooperated. 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.”
But the judge was particularly scathing of the chain’s attempt to argue that despite the food being out of date it was still ‘safe’ to consume.
He said: “Since 2014 the law has been absolutely clear that food cannot be sold after the use by date. Tesco decided to try to argue that food is still consumable after the use-by date and it should not be an offence.
“They found a scientist who gave that opinion. Lawyers and judges might think and say such arguments are interesting and of public importance. Tesco say the law needed to be clarified. It was crystal clear but Tesco tried to make it confusing. In the world of common sense, such an argument was simply spurious and without any merit in it whatsoever.”
Judge Qureshi continued and added: “This needs to be said to Tesco and others in case people want to find ways to avoid complying with the food safety laws. If the Tesco defence was a valid one, no one would ever plead guilty to selling an item after the use by date and they would shop around to find a scientist to say it is still safe to eat.
“If Tesco had succeeded with this implausible defence about unsafe foods, then the game of Russian Roulette can be described as a safe one.”
He doubled down on his criticism of a food ‘expert’ who compared the mould on the grapes to that in blue cheese.
Judge Qureshi said: “He checked the bacteria and thought the levels were fine and rendered the food safe to eat. He would be happy to eat them. He even compared the cotton-like mould on grapes to the mould in blue cheese. He is completely at odds with the feeling of disgust that any ordinary member of the public would have on seeing the mould on grapes.
“If I am wrong about that, then perhaps someone might pioneer a new market amongst the public for mouldy grapes to be eaten with mouldy cheese, mouldy biscuits and pungent wine. In his opinion some of the food manufacturers are wrong to even put a use by date on some of their foods.
“In my view, the problem with this methodology is that the ordinary customer does not have access to a scientific laboratory in their kitchen or back garden to test the amount of bacteria in foods beyond the use by date.”
The Judge also dismissed the chain’s argument that the failures were ‘isolated’ to a small number of stores in Birmingham pointing out they had been fined £160,000 last year for similar offences in Reading in October 2017.
He then came to his calculation of the fine which he said must ‘bring the message home to the defendant company and to others in the food business’.
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Tesco was fined a total of £7,560,000 and ordered to pay £95,500 in prosecution costs as well as a £170 victim surcharge.
“There is no question that Tesco can afford such a fine. It represents a mere 0.02 per cent of their turnover and a small fraction of their profits,” Judge Qureshi added.
Iain McDonald, defending Tesco, had denied that the failures in the three stores were down to staffing or that there was a ‘systematic’ problem within the chain.
He said: “Tesco takes the issue of food safety extremely seriously and has procedures designed to ensure no out of date products are on sale. Tesco would like to apologise for the failures in this case.”
A Tesco spokesman added: “We’re disappointed that a small number of out of date products were found on sale in three stores in 2016/17. 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.
“We took immediate action to address this at the time and we want to reassure our customers that we have robust procedures in place to make sure that this doesn’t happen.”