Tesco fine serves as warning to food industry – Richard Reichman writes for New Food Magazine

Tesco fine serves as warning to food industry – Richard Reichman writes for New Food Magazine

BCL partner Richard Reichman’s article ‘Tesco fine serves as warning to food industry’ has been published by New Food Magazine.

Here’s an extract from the article:

“On 19 April 2021, Tesco Stores Limited was fined £7.56 million at Birmingham Magistrates’ Court after pleading guilty to 22 out-of-date food offences which occurred at three of its stores in 2016 and 2017. The level of fine is unparalleled in food safety prosecutions and represents one of the highest safety regulatory fines in recent memory.

Out-of-date food offences were capped at £5,000 per offence in the Magistrates’ Court until 2015.  The judge’s starting point in this case was an eye-catching £10,000,000 for one offence; a dramatic increase of 200,000 percent in just six years. By comparison, during the same period, Tesco’s UK turnover has remained broadly static at around £50 billion. Had the defendant been a ‘large’ organisation (with a turnover of £50 million and over), rather than a ‘very large’ organisation (with a turnover very greatly exceeding £50 million and over), the starting point in the relevant sentencing guideline would have been over ten times lower at £90,000 (for medium culpability, harm category 2 – see below).

Also illustrative of the high level of fine is that in September 2020, Tesco was fined £160,000 in a separate case at Reading Magistrates’ Court for offences which the judge in the Birmingham case described as “similar”. Other recent fines for these offences received by major supermarkets, while of limited assistance due to the bespoke approach to each case required by the sentencing guideline, include the Co-op being fined £40,000 in October 2020 and Waitrose being fined £33,350 in May 2019.

There are several points of interest in relation to this case and the high level of fine imposed, which are discussed below.

Tesco didn’t listen

In the ‘Sentencing Outline’ prepared by the judge, Tesco was described as having scored an own goal having been “given a chance to review its procedures and put its house in order” in 2015.  Tesco invited the local authority to re-inspect a store where out-of-date food had been identified when issues remained. This is a surprisingly common feature in food safety cases and businesses are urged to be careful when inviting a regulator back to re-visit, advising them not to do so prematurely.

The judge stated that “this prosecution alleges that Tesco played ‘Russian Roulette’ with customers’ safety”. The connotations of the analogy are interesting as the prosecution alleged Category 2 harm in this case – ie, not the highest risk of harm (Category 1) – and the judge stated that the local authority “conceded that someone wasn’t likely to die as a result of eating these food items if they were cooked properly”. There were also many food safety systems in place and the prosecution and defence agreed that culpability was in the ‘medium’ category, ie, the second lowest of the four available categories.”

This article was published by New Food Magazine on 27/05/21. Read the full version on their website.

Richard Reichman is a partner specialising in corporate crime, financial crime and regulatory investigations. He is recommended by The Legal 500 for his “extensive experience” and being “extremely thorough and appreciat[ing] the big picture issues”. He has experience in a broad range of regulatory offences, such as health and safety (generally following major or fatal incidents), environmental, food safety, fire safety and trading, as well as financial offences such as fraud, bribery, insider dealing and money laundering. Richard is involved in cases involving cybercrime (for example, computer-specific offences such as hacking) or a technological dimension. He has acted for victims of cybersecurity breaches and advises regarding data protection issues falling within the scope of the Information Commissioner’s Office.

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