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Morrisons’ new milk labelling may not pass the FSA’s ‘sniff test’

Out-Law News | 10 Feb 2022 | 9:25 am | 2 min. read

Morrisons’ new ‘sniff test’ for milk may not comply with regulatory requirements, according to the Food Standards Agency (FSA).

The UK food retailer announced in January that its milk products would no longer carry ‘use by’ dates - which indicate when food is safe to consume - in an effort to cut down on waste and prevent millions of pints being thrown away unnecessarily each year. Morrisons said its bottles would still display ‘best before’ dates that indicate the quality of the milk’s taste.

According to UK food waste charity Wrap, the country wastes about 330,000 tonnes of milk every year, representing about 7% of total UK production. Around 490 million pints are thrown away by households each year, making milk the third most-wasted food in the UK, behind potatoes and bread. The extensive resources required to feed cows also mean that dairy farming is linked to high carbon emissions.

But in a statement that welcomed efforts to reduce food waste, the FSA reminded businesses of their duty to “make sure the right date label is applied to their products to help consumers make informed choices and stay safe.”

“Whether milk will need a use-by or best before date will depend on the degree of processing, and a robust assessment of the microbiological risk by the food business. The FSA recommends that people only use sensory tests, like the ‘sniff test’, for foods with a best before date. If the product has a use-by date, the sniff test is not reliable. People can’t always smell the bugs that cause food poisoning,” it added.

Zoe Betts, food safety expert at Pinsent Masons, said: “The FSA’s message is clear: businesses will be expected to ensure that the correct labelling is applied to their products, including in relation to ‘use by’ dates. While it appreciates the sentiment behind Morrisons’ announcement, consumer safety cannot be compromised, and robust evidence must be available before date labelling is applied or removed.” 

The 2011 EU Food Information for Consumers Regulation (FIC), which details mandatory provisions relating to ‘use by’ dates on food, states that a ‘use by’ date, rather than a ‘best before’ date, must be labelled on foods that, from a microbiological point of view, are “highly perishable and are therefore likely after a short period to constitute an immediate danger to human health”. After the ‘use by’ date has passed, the FIC deems food to be “unsafe”.

The FIC runs in conjunction with the 2002 Food Safety Regulation (FSR), which states that a foodstuff "shall not be placed on the market if it is unsafe". Under the 2013 Food Safety and Hygiene (England) Regulations, it is an offence to contravene or fail to comply with the FSR. Any retailer charged with failure to comply with the FSR must demonstrate that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Betts said: “Failure to take reasonable precautions may result in an unlimited fine for the business concerned and the consequent commercial and reputational damage that would inevitably follow.”