Newby Foods Ltd, R (on the application of) v Food Standards Agency [2019] UKSC 18

Newby Foods challenged the Food Standards Agency's moratorium classifying its desinewed pork and chicken products as mechanically separated meat (MSM) under EU Regulation 853/2004. The Supreme Court dismissed the appeal, holding the CJEU had clearly ruled such products constitute MSM.

Facts

Newby Foods Ltd developed a two-stage mechanical process to recover residual meat from flesh-bearing bones (pork) and poultry carcases (chicken) after initial butchering. The first stage used shearing forces to remove meat from bones; the second stage minced the recovered meat. The resulting product, known in the UK as ‘desinewed meat’ (DSM), resembled ordinary minced meat and was visibly distinct from high-pressure MSM (which has a purée-like consistency).

The European Commission considered DSM should be classified as mechanically separated meat (‘MSM’) within point 1.14 of Annex I to Regulation (EC) 853/2004. Classification as MSM has significant consequences: MSM cannot count towards the meat content of products, must be labelled as MSM under Directive 2000/13/EC, is subject to stricter hygiene rules, and (for ruminants) cannot be produced at all under the TSE Regulation. Facing potential EU safeguard measures, the FSA issued a moratorium on 4 April 2012 reflecting the Commission’s view.

Newby challenged the moratorium by judicial review. Edwards-Stuart J made a preliminary reference to the CJEU, which ruled (Case C-453/13) that products obtained by mechanical removal of meat from flesh-bearing bones after boning, or from poultry carcases, must be classified as MSM where the process causes loss or modification of muscle fibre structure greater than that strictly confined to the cutting point. Newby abandoned its challenge regarding lamb and beef but continued regarding pork and chicken. On the resumed hearing, Edwards-Stuart J found in Newby’s favour, interpreting ‘cutting point’ broadly. The Court of Appeal reversed, and Newby appealed to the Supreme Court.

Issues

The central issue was whether the CJEU’s judgment, properly interpreted, required the pork and chicken products of Newby’s process to be classified as MSM within point 1.14 of Annex I to the Regulation. In particular, the court had to determine the meaning of the CJEU’s ‘cutting point’ qualification: whether it referred narrowly to the cutting of intact muscles (the FSA’s position), or more expansively to every severed edge produced during the process (Newby’s position adopted by Edwards-Stuart J).

Arguments

Newby’s Arguments

Newby contended that the CJEU’s ruling should be read so that modification of muscle fibre structure confined to any severed edge of meat fragments would exclude classification as MSM. Relying on microscopic evidence, Newby argued modification occurred only at such severed edges. It invoked article 11 TFEU (environmental protection and sustainable development), submitting that treating DSM as MSM wastes edible meat and necessitates raising more animals. Newby also relied on evidence regarding the removal of chicken wishbones before breast removal, and on the division of competence between the CJEU and national courts, citing Revenue and Customs Comrs v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15 and the French Conseil d’État’s decision in De Groot en Slot Allium BV.

FSA’s Arguments

The FSA argued the CJEU’s judgment was clear and conclusive: any loss or modification of muscle fibre structure beyond that strictly confined to the cutting of intact muscles meant the product was MSM. The ‘cutting point’ qualification related only to cutting of intact muscles from the carcase. The CJEU had repeatedly stated that Newby’s products fell within MSM, and the interpretation was reinforced by the wider scheme of the TSE Regulation and the Labelling Directive.

Judgment

Lord Sales (with whom Lord Reed, Lord Carnwath, Lord Hodge and Lord Kitchin agreed) dismissed the appeal, endorsing the reasoning of the Court of Appeal.

The Court refused to admit late further evidence filed by the interveners, holding it was unfair to the FSA given the late stage of filing and that the appeal turned on questions of law.

On the merits, Lord Sales held that the products of Newby’s process satisfied all three cumulative criteria for MSM identified by the CJEU at paragraph 41 of its judgment: (i) use of bones from which intact muscles have already been detached, or of poultry carcases to which meat remains attached; (ii) use of mechanical means to recover the meat; and (iii) loss or modification of muscle fibre structure going beyond that strictly confined to the cutting point.

The CJEU’s ‘cutting point’ qualification was to be read narrowly: it referred to the cutting of intact muscles during the initial phase of removing meat from a carcase. Mechanical removal of chicken breasts as whole muscles from the carcase fell within that qualification and was not MSM; by contrast, Newby’s process removed residual meat after intact muscles had been detached, using shearing forces that caused more general modification of muscle fibre structure. The broad reading favoured by Edwards-Stuart J would have undermined the clear general rule announced by the CJEU and defeated the purpose of the classification.

Lord Sales held the CJEU had clearly and repeatedly indicated that Newby’s products fell within the low-pressure MSM category (referring to paragraphs 46, 50, 52, 53, 58, 59 and 64 of the CJEU’s judgment). This was a permissible exercise where the CJEU considered the application of law to the facts was clear, and was distinguishable from cases such as Aimia and De Groot, where the national court subsequently found different facts from those presumed by the CJEU. Here the CJEU had accurately understood the factual position.

The interpretation was reinforced by the wider EU legislative context: the TSE Regulation (aimed at preventing the spread of transmissible spongiform encephalopathies and requiring a wide reading of MSM given the possible presence of bone shards in Newby’s products) and the Labelling Directive (aimed at preventing consumer deception where products resemble minced meat of better quality).

Article 11 TFEU did not support a different reading. The CJEU had been aware of the meat-wastage argument and had given a clear authoritative ruling. Article 11 could not be used to go behind that ruling. The position was acte clair and no further reference was required.

Implications

The decision confirms that, under point 1.14 of Annex I to Regulation (EC) 853/2004, any meat recovered by mechanical means from flesh-bearing bones after the initial detachment of intact muscles, or from poultry carcases after the initial removal of the breasts, will generally constitute mechanically separated meat, regardless of the degree of modification of muscle fibre structure, provided that modification is not strictly confined to the cutting of intact muscles. The distinction is not one of degree to be determined by microscopic analysis, but rather a bright-line rule tied to the stage at which the meat is removed.

The decision affirms the primacy of an authoritative CJEU ruling on interpretation of EU law where the court has also clearly indicated the application of that ruling to the facts which it properly understood. National courts may reach different conclusions on application only where further evidence establishes materially different facts from those before the CJEU, as in Aimia and De Groot. That was not the position here.

The judgment leaves some factual questions open (referred to but not decided): whether pork carcases processed in stages might yield intact-muscle products outside the MSM definition at each stage, and the precise categorisation of chicken breasts where wishbones have been removed prior to breast removal. These points were not the subject of findings below or legal proceedings.

Practically, the decision matters to meat producers, processors and regulators across the UK (and, at the time, the EU). Products classified as MSM are subject to stricter hygiene requirements, cannot count towards the meat content of food products, must be specifically labelled, and (in the case of ruminants) cannot be produced at all. The ruling constrains the commercial viability of processes such as Newby’s for pork and chicken DSM. Article 11 TFEU concerns about meat wastage and sustainability cannot override clear legislative classifications adopted by the EU legislature and authoritatively interpreted by the CJEU.

Verdict: Appeal dismissed. The Supreme Court held that the products of Newby’s process applied to pork and chicken carcases fall to be classified as mechanically separated meat (MSM) within point 1.14 of Annex I to Regulation (EC) 853/2004, and upheld the Court of Appeal’s decision dismissing Newby’s judicial review challenge to the FSA’s moratorium.

Source: Newby Foods Ltd, R (on the application of) v Food Standards Agency [2019] UKSC 18