R (on the application of Newby Foods Ltd) (Appellant) v Food Standards Agency (Respondent)
|Cite as:|| UKSC 18|
|Hand-down Date:||April 03, 2019|
Hilary Term  UKSC 18 On appeal from:  EWCA Civ 400
R (on the application of Newby Foods Ltd) (Appellant) v Food Standards Agency (Respondent) before
Lord Reed, Deputy President Lord Carnwath
Lord Hodge Lord Kitchin Lord Sales JUDGMENT GIVEN ON 3 April 2019 Heard on 30 January 2019 Appellant Respondent Hugh Mercer QC
Jason Coppel QC Michael Lee (Instructed by Food Standards Agency) Andrew Legg
(Instructed by Roythornes Limited)
John Robb (Instructed by The National Farmers' Union) Interveners (2-4)
Jessica Wells (Instructed by Roythornes Limited) Interveners:-
(1) The National Farmers' Union (written submissions only)
(2) The Association of Independent Meat Suppliers (written submissions only)
(3) The British Meat Processors Association (written submissions only)
(4) The British Poultry Council (written submissions only)
LORD SALES: (with whom Lord Reed, Lord Carnwath, Lord Hodge and Lord Kitchin agree)
This is a case concerning the application of EU rules regarding food hygiene in relation to meat and poultry to certain chicken and pork products manufactured by the appellant, Newby Foods Ltd ("Newby"). Newby contends that these products should not be classified as mechanically separated meat ("MSM") within point 1.14 of Annex I to EU regulation no (EC) 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin ("the Regulation").
Factual and procedural background
Nowadays the butchering of animal carcases in the food industry across the EU is carried out in many instances not by traditional hand butchering but by machines. These can do the job more economically, but they are less accurate than skilled human butchers. The machines often leave a significant amount of meat on the bone. For chickens, breast-meat is usually removed by a somewhat different mechanical process, described below, leaving other meat on the carcase.
With a view to making use of this residual meat on animal and poultry carcases, in the 1970s machines were developed that would crush the carcase bones and residual meat together under high pressure to produce, after filtering, what looks like a purée. The product of this high pressure process is one form of MSM for the purposes of the Regulation ("high pressure MSM"). Use of high pressure MSM for the production of food is subject to specific hygiene requirements set out in paragraph 4 of Chapter III of Section V of Annex III to the Regulation.
Other processes have been developed to remove residual meat from the carcase bones under lower pressure, leaving the bones intact. The product of such low pressure processes is another form of MSM for the purposes of the Regulation ("low pressure MSM"). Use of this kind of MSM for the production of food is subject to different hygiene requirements, as set out in paragraph 3 of Chapter III of Section V of Annex III to the Regulation. The requirements in paragraph 3 "apply to the production and use of MSM produced using techniques that do not alter the structure of the bones used in the production of MSM and the calcium content of which is not significantly higher than that of minced meat."
Newby has developed a machine to remove residual meat from carcase bones. This has been used by Newby to process residual meat on beef, lamb and pork bones after the initial boning of the animal carcases (that is, after the mechanical butchery to remove the main meat from those animal carcases has taken place) and on chicken carcases after the breasts have first been removed by other mechanical processes. The Newby process has two stages. In the first stage, meatbearing bones are forced into contact with each other so that meat is removed from the bones by shearing forces. In a second stage the meat removed in this way is then passed through another machine, which is effectively a mincer, producing a product which looks like minced meat. This meat product was previously known in the United Kingdom as desinewed meat ("DSM"), and was regarded by many, including at one stage the Food Standards Agency ("FSA"), as distinct from MSM. DSM is not a category of product recognised in EU law.
Under EU law important consequences flow from the classification of different products derived from meat. In particular, MSM cannot be counted towards the meat content of food and must be produced under stricter hygiene conditions, as laid down in Annex III to the Regulation. Special rules apply to the labelling of MSM under Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the member states relating to the labelling, presentation and advertising of foodstuffs (as amended by Commission Directive 2001/101/EC of 26 November 2001) ("the Labelling Directive"). Furthermore, the sale of MSM produced from lamb and beef bones is prohibited entirely in order to minimise the risk of the spread of Transmissible Spongiform Encephalopathies ("TSE"), by virtue of regulation (EC) 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible encephalopathies (as amended by Commission regulation (EC) 722/2007 of 25 June 2007) ("the TSE Regulation"). The commercial value of MSM is less than other forms of fresh meat products, including minced meat.
The issue before the court is how DSM produced using the Newby process should be classified within the scheme of this EU legislation, and in particular under the Regulation. The European Commission ("the Commission") maintains that DSM should be classified as MSM. It criticised the stance originally taken by the FSA that DSM products should not be classified as MSM and threatened to take action against the United Kingdom if DSM continued to be produced and sold without regard to the restrictions imposed upon MSM. This action could have involved "safeguard measures" restricting the export of UK meat products to the rest of the EU. Notwithstanding the fact that it disagreed with the Commission's classification of DSM as MSM, on 4 April 2012 the FSA issued a moratorium to reflect the Commission's view regarding the effect of the relevant EU legislation ("the moratorium"). The moratorium had the result that DSM could no longer be produced from residual meat on beef and lamb bones and could only be produced
from residual meat on chicken and pork bones if it were classified and labelled as MSM and not counted towards the meat content of products in which it was present.
Newby brought judicial review proceedings challenging the moratorium, contending that it was based upon an error of law as to the definition of MSM in point 1.14 of Annex I to the Regulation ("point 1.14"). On 16 July 2013 Edwards-Stuart J made a preliminary reference to the Court of Justice of the European Union ("CJEU"). He gave an extended judgment to explain the background to the case:  EWHC 1966 (Admin) ("the reference judgment").
In its judgment dated 16 October 2014 (Case C-453/13) ECLI:EU:C:2014:2297 ("the CJEU judgment"), the Tenth Chamber (Judges A Rosas, E Juhász and D Sváby (Rapporteur)) of the CJEU made a ruling in the following terms:
"Points 1.14 and 1.15 of Annex I to regulation (EC) no 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin must be interpreted as meaning that the product obtained by the mechanical removal of meat from flesh-bearing bones after boning or from poultry carcases must be classified as 'mechanically separated meat' within the meaning of that point 1.14, since the process used results in a loss or modification of the muscle fibre structure which is greater than that which is strictly confined to the cutting point, irrespective of the fact that the technique used does not alter the structure of the bones used. Such a product cannot be classified as a 'meat preparation' within the meaning of that point 1.15."
After this ruling, Newby abandoned its challenge to the moratorium so far as concerned the prohibition against producing DSM from residual meat on lamb and beef carcases. It is relevant to note here that sheep and cows are ruminant animals, which is a significant category for the purposes of the TSE Regulation: see below. However, Newby continued its challenge to the moratorium as regards the requirement that DSM produced from residual meat on pork and chicken carcases should be treated as MSM and labelled as such.
In the resumed proceedings before the national court, Newby filed further evidence in support of its case that the pork and chicken DSM it produces should not be categorised as MSM. In a judgment of 23 March 2016  EWHC 408 (Admin) ("the main judgment") Edwards-Stuart J concluded that the pork and chicken meat products resulting from the first stage of the Newby process are not
MSM. On this view, under the EU legislation pork and chicken DSM could be counted towards the meat content of a product, did not have to be labelled as MSM and was not subject to the special hygiene regime in paragraph 3 of Chapter III of Section V of Annex III to the Regulation. The judge also found that such DSM was not a product derived from bone scrapings, which is another category of meat product under the EU legislation. The judge granted the FSA permission to appeal to the Court of Appeal on limited grounds.
On the appeal, the FSA submitted that in the main judgment the judge had erred in departing from what the FSA argued was the clear ruling in the CJEU judgment that the pork and chicken products of Newby's process are, like the lamb and beef products of that process, properly to be classified as MSM within the meaning of point 1.14. The Court of Appeal  EWCA Civ 400...
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