At Kilcock District Court on Friday, 25th May 2012, Tesco pleaded guilty to offences of placing unsafe food on the market. The judge applied the Probation Act and Tesco made a charitable donation of €12,000.00 along with a payment of €1,500.00 towards the costs of the Health Service Executive.
The prosecution arose following a consumer complaint about chicken that had purchased from the Tesco Extra Store in Maynooth. The chicken had gone off and was said to have had a “strong foul odour”.
The HSE said that there had been five or six previous complaints about chicken at the Maynooth store and this had been raised at meetings between the HSE and Tesco representatives.
The problems leading to the prosecution appear to have occurred due to the temperature of a stand-alone fridge being higher than it should have been. Instead of operating at 5 degrees Celsius the temperatures were between 7.9 degrees Celsius and 9.2 degrees Celsius and the fridge had no alarm system that would have alerted staff to the problem. Tesco said it has stopped using that type of fridge.
Reports about the case say that no member of Tesco senior management had been present in court and Judge Desmond Zaidan said that this showed “total disregard for the Court”. When a corporate defendant is before the courts it is usual practice for it to be represented by a director or someone senior within the organisation as this shows the court and the public how seriously the company is taking the case.
From a business perspective, the senior person sees the court procedure at first hand. This enables a full report to be presented to the organisation’s management so that steps can be taken at the highest level to prevent further breaches of regulations. From a lawyer’s perspective having someone senior in court allows them to be given full instructions about the conduct of the case.
Failing to comply with regulations is a serious matter. This situation could have been made much more serious if the condition of the chicken had led to consumers suffering food poisoning.
Tesco was prosecuted under the European Communities (General Food Law) Regulations 2007. In addition to taking action against corporate entities the Regulations permit the prosecution of directors and other senior personnel. In the District Court, breach of the Regulations can result in a fine of up to €5,000.00 and/or a term of imprisonment not exceeding 6 months. Conviction on indictment increases these penalties to a fine of up to €500,000.00 and/or a term of imprisonment not exceeding 3 years.
Prosecution is one method of enforcing non-compliance with food law regulations. The authorities also have the legal power to close down food businesses and to prohibit the sale of food where there is a serious risk to public health.
We have many years’ experience advising food businesses about their regulatory obligations and how to respond positively to protect themselves and their brands when problems are raised by consumers or by the authorities.