What’s that got to do with the price of fish?

Well, the answer is quite a bit if you are Azzuri Restaurants Limited (the company which trades as ASK Italian) which pleaded guilty to one breach of section 15 of the Food Safety Act 1990 (the “Act”) and has, this week, been sentenced to a fine of £40,000.

Section 15 of the Act provides that it is an offence for any person (or company) who gives any food they sell, or displays with any food offered by them for sale or in their possession for the purpose of selling the food, a label (whether or not it is attached to the packaging of the product) which either falsely describes the food or is likely to be misleading as to the nature or substance or quality of the food.

In this case, the offence concerned the company’s aragosta e gamberoni pasta dish priced at £14.95, which was scrutinised during a routine visit by Trading Standards. The dish was described on the menu as ‘lobster and king prawns in a creamy tomato sauce with a hint of chilli.’ Upon asking to be shown the original packaging for the ingredients, the Trading Standards officer discovered it was, in fact, a chopped, shaped and formed lobster and white fish mix. As such, Trading Standards took the view that describing the product as lobster when it was in fact a composite product made to look like lobster was likely to be misleading to ASK’s customers. In court, the prosecution remarked that ‘consumers did not get what the consumer was entitled to expect’.

Since 2016, courts have been able to impose unlimited fines for offences of this nature. The culpability of the defendant, level of harm posed by the offence and, in the case of a company its turnover are all relevant considerations in determining the level of fine. In this case, it is of note that the judge’s view was that the manner in which the dish was described was ‘a deliberate action’ and ‘falsely misrepresented the food’, although he was not convinced there was ‘evidence of profiteering’. The judge appears to have determined that the mischief of the offence was using an inferior ingredient and failing to be transparent about it. As a result, the fine imposed was relatively low and certainly lower than might have been expected in other circumstances; including where there was a risk to the safety of consumers. It is also of note that the prosecution did not seek to use the Proceeds of Crime Act 2002 to recover the profit made by ASK from the sales of the aragosta e gamberoni pasta dish.

So, what lessons can other food business operators take from this case? Firstly, it is important that food business operators take the time to review the way in which food items they sell to consumers are labelled, described, presented and marketed. Secondly, operators must carry out due diligence in their supply chain and scrutinise what food items are made of and ensure that they have considered whether the information provided to consumers is sufficiently clear. Finally, operators should consider how they will evidence the fact that the steps listed above have been taken.

It is also it important to note that the Act provides a specific defence to a breach of Section 15 which requires defendants to provide evidence that satisfies a number of requirements. One of the requirements places the onus upon the defendant to demonstrate that the business carried out all checks of the food in question “as were reasonable in the circumstances” or that it was “reasonable in all the circumstances for him to rely on checks carried out by the person who supplied the food”. The nature and scope of the checks an operator should undertake depends on the nature of the food product (including information supplied by the supply chain), the circumstances in which the food is sold, and the size and type of operator involved.

Cases which focus on consumer protection issues arising from the actions of businesses operating in the food industry are not new. However, perhaps what the ASK case shows is the emphasis Trading Standards place on ensuring that consumers are provided with accurate information about the food they eat. It is certainly food for thought!