You can't have different rules for trendy social enterprises - however noble their mission

About four years ago a chap called Adam Smith set up the Real Junk Food Project:

We are a revolutionary concept designed to challenge and highlight the issues of food waste while creating inclusive environments where everyone is welcome. Consisting of cafés, outside catering, events, Sharehouse’s and Fuel For School, we use the Pay As You Feel Concept to utilise surplus food, educate the general public and campaign against global issues that food waste creates.

We intercept surplus food from a wide range of places including supermarkets, restaurants, wholesalers, food banks, food photographers and using common sense and decades of experience make a judgement on whether the food is fit for human consumption.

In a world where the default response of the environmentally-concerned is to shout at government and organise meetings, Adam Smith stands out as one of those people who just went and did something. Rather than ask government to spend taxpayers money he and his colleagues walked head-on towards the regulations and management practices that encourage food waste. This is both admirable and innovative and has my support.

There is, however, a problem because Regulation (EU) No 1169/2011 on the provision of food information to consumers (“FIC”) confirms that:

...it remains an offence to place food with an expired ‘use by’ date on the market and if such food is discovered then it must automatically be deemed unsafe. This is not a rebuttable presumption.

Yesterday the news broke that the Real Junk Food Project was under investigation by West Yorkshire Trading Standards:

West Yorkshire Trading Standards (WYTSS) said it found more than 400 items past their use-by date at the RJFP warehouse on the Grangefield Estate in Pudsey.

A letter sent to RJFP states 444 items, which were a cumulative total of 6,345 days past the use-by dates, were discovered.

The regulations, at least as I see them, seem pretty unequivocal and WYTSS had little choice but to conduct an investigation indeed failing to do so might be seen as failing in its duty. And WYTSS is clearly not singling out the Real Junk Food Project - here is a successful prosecution from May 2017:

A supermarket owner has been ordered to pay more than £20,000 in fines and costs for selling items of food up to nearly 50 days over their use-by date.

Trading Standards made a routine visit to Shimla Superstore Ltd, in Clayton Road, Bradford, on September 13 last year and discovered 88 items available for sale past their use-by date.

Of these, five items of a turkey product with olives were 48 days out of date.

When added together, the total number of days past the use-by date for all 88 items was 1,769.

It is clear that trading standards cannot make a distinction between a project such as the Real Junk Food Project set up with noble motives and a straightforward food retailer. This doesn't mean that RJFP doesn't have a defence - Adam Smith is, as he says, an experienced chef - but does ask the question as to whether the absolute nature of the regulation in question needs challenge.

If we are to improve the efficiency in which we use food resources (there's a debate to be had about this but, for now, let's assume this is a great idea and that efficiency is defined by how little is thrown away) then the way in which food safety regulations are applied probably needs questioning. At the heart of all this is where responsibility rests - with the consumer or with the manufacturer. In essence this is the same debate as that about raw milk cheese - if you go to, for example, to The Courtyard Dairy at Settle, they'll ask you whether you're OK with cheese made from unpasteurised milk as this provides them cover since the consumer is accepting the risk (as far as I know this wouldn't work in Scotland).

Others will doubtless pour over the laws involved here and quite rightly so. There will be calls for changes to the regulations (England's regulations on raw milk are, for example, far less stringent than those in Scotland) although, so long as we're members of the EU, this is a slow, torturous and contested process. But in the end, regulatory agencies such as trading standards and the Food Standards Agency cannot have regard to the mission of the organisation breaching the regulations regarding, in this case, the sale or use of products passed their 'use by' date.

What I hope is that this debate questions the manner in which 'use by' dates are applied by food manufacturers. There is a petition raised which again lifts the debate from the mundane pages of council committee reports or the shock-horror of local paper reporting but we have to accept that in a complex food distribution system and a dynamic market regulations exist to protect consumers. And that this applies just as much to trendy social enterprises as it does to huge supermarket chains. The regulations we have didn't arise to promote food waste (I'm sure food manufacturers and retailers would prefer more scope and less waste) but were introduced to protect consumers from the health risks associated with old, poorly-stored and/or damaged food.

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