The Supreme Court held that residual pork and chicken meat recovered by Newby Foods Ltd through a mechanical shearing process must be classified as mechanically separated meat under EU food-hygiene rules. That classification prevents the product from counting towards meat content and subjects it to the labelling and production restrictions in the Food Standards Agency’s moratorium. The Court agreed with the Court of Appeal that a prior ruling of the Court of Justice required this result.
Newby Foods Ltd developed a two-stage machine for recovering meat left on bones after the main cuts had been removed. Meat-bearing bones were forced together so that shearing removed the residual meat; the recovered meat was then minced. In the United Kingdom this product had been called desinewed meat. It looked like minced meat and differed markedly from the purée produced by older high-pressure crushing machines.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Point 1.14 of Annex I to Regulation (EC) 853/2004 defines mechanically separated meat as the product obtained by removing meat from flesh-bearing bones after boning, or from poultry carcases, by mechanical means resulting in the loss or modification of the muscle-fibre structure. Classification as mechanically separated meat has practical consequences. The product cannot be counted towards the meat content of food, must be produced under specific hygiene rules, and must be labelled as mechanically separated meat rather than as meat. Production from ruminant bones is prohibited altogether because of the risk of transmissible spongiform encephalopathies. Desinewed meat is not a category recognised by EU law, and its commercial value is lower if it must be treated as mechanically separated meat.
The European Commission maintained that Newby’s product was mechanically separated meat and threatened action against the United Kingdom if it continued to be sold without those restrictions. Although the Food Standards Agency disagreed with that classification, it issued a moratorium on 4 April 2012 giving effect to the Commission’s view. Desinewed meat could no longer be produced from beef or lamb bones. Pork and chicken products could be produced only if classified and labelled as mechanically separated meat and not counted as meat content.
The reference and the Court of Justice
Newby brought judicial review proceedings, contending that the moratorium rested on a mistaken reading of point 1.14. Edwards-Stuart J referred questions to the Court of Justice. The Court of Justice held that points 1.14 and 1.15 must be interpreted so that a product obtained by the mechanical removal of meat from flesh-bearing bones after boning, or from poultry carcases, is mechanically separated meat where the process causes a loss or modification of muscle-fibre structure greater than that strictly confined to the cutting point. That is so even if the technique does not alter the structure of the bones. Such a product cannot be a meat preparation. The Court treated the degree of modification as irrelevant and identified three cumulative criteria: use of bones from which intact muscles had already been detached, or of poultry carcases to which meat remained attached; mechanical separation; and a resulting loss or modification of muscle-fibre structure beyond the cutting point.
After that ruling, Newby abandoned its challenge so far as it concerned beef and lamb. It continued the challenge for pork and chicken and filed further evidence. Edwards-Stuart J accepted that the Court of Justice had regarded the product of the first stage as mechanically separated meat, but held that the domestic court had to apply the ruling to the facts. He adopted a broad reading of “cutting point”, treating it as every severed edge of the pieces emerging from Newby’s first stage. On the microscopic evidence, modification was confined to those edges, so the pork and chicken product was not mechanically separated meat. He also found that it was not derived from bone scrapings.
The Court of Appeal and the Supreme Court
The Court of Appeal allowed the Agency’s appeal and dismissed the challenge to the moratorium. Lloyd Jones LJ held that the Court of Justice had given a clear adverse answer to Newby’s principal argument. The cutting-point qualification was limited to the cutting of intact muscles, and was introduced to explain why mechanically removed chicken breasts are not mechanically separated meat. Residual meat removed after intact muscles have already been detached shows a more general modification and is mechanically separated meat. The Court of Appeal agreed that the judge had been entitled to find that the product was not bone scrapings.
Lord Sales, with whom Lord Reed, Lord Carnwath, Lord Hodge and Lord Kitchin agreed, dismissed Newby’s further appeal. It was common ground that the first two criteria were met. The products also met the third. The Court of Justice had paraphrased “after boning” as the prior detachment of intact muscles, and had treated the initial mechanical removal of chicken breasts as the equivalent first stage for poultry. Meat removed in that initial stage is not mechanically separated meat if any fibre modification is strictly confined to the cutting point. Meat recovered mechanically thereafter generally is. The Court of Justice had repeatedly and explicitly treated Newby’s own low-pressure product as falling within the definition.
Further evidence about wishbone removal, the precise method of detaching chicken breasts, or the occasional survival of an intact muscle did not unsettle that conclusion. The Court of Justice had understood Newby’s process, and no legal dispute had been brought about the classification of ordinary chicken breasts or about particular pork-butchery methods. A national court may apply a Court of Justice interpretation to facts found to differ from those assumed on the reference, but here the material facts had not changed. Arguments based on avoiding waste and on article 11 of the Treaty on the Functioning of the European Union also failed. The Court of Justice had been aware of the wastage point and had given a clear ruling, shaped by consumer protection, the TSE regime and labelling rules intended to prevent consumers being misled and to avoid unequal conditions of competition. The meaning of the ruling was acte clair, so no further reference was required.
Verdict: The Supreme Court unanimously dismissed Newby’s appeal. Under the EU rules at issue, its mechanically recovered pork and chicken products had to be classified as mechanically separated meat. No further reference to the Court of Justice was needed.
Source: R (on the application of Newby Foods Ltd) v Food Standards Agency [2019] UKSC 18
