Expired food or wasted food? That is the question | In Principle

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Expired food or wasted food? That is the question

Environmental inspectors in Poland are stepping up inspections of stores for compliance with the Combatting Food Waste Act. In doing so, they point to shortcomings regarding not only the proper distribution of the fee for wasted food and the implementation of educational campaigns, but especially the understanding of the definition of food waste. In many cases, the inspectors are wrong, as the administrative courts have begun to recognise.

Although the generation of food waste is inevitable, the amount of wasted food is alarming. A study conducted in 2020 as part of the PROM project found that nearly 5 million tonnes of food is wasted annually in Poland. The problem is global, and this undesirable phenomenon has persisted for a long time, and in 2015 prompted the United Nations General Assembly to address the problem as part of the resolution “Transforming Our World: Agenda for Sustainable Development 2030.” The resolution sets out 17 Sustainable Development Goals (SDGs) and the 169 targets associated with them that the world should achieve by 2030. One of the goals is to ensure sustainable consumption and production patterns, which the UN members expect to achieve through:

  • Halving the global amount of food wasted per capita in retail sales and consumption
  • Reducing food losses in the production and distribution process (including losses incurred during harvesting)
  • Significantly reducing the level of waste generation through prevention, reduction, recycling and reuse.

Shortly thereafter, the European Union began taking steps to become the first climate-neutral continent, and reducing food loss and waste became one of the sustainable development goals within the framework of the European Green Deal. At the time, the EU also announced the “farm-to-table” strategy, which aims to establish a sustainable food system by, among other measures, reducing food loss and waste.

Poland does not want to waste food

Polish lawmakers have responded to the need to establish a sustainable food system by reducing food loss and waste. In 2019, the parliament adopted the Combatting Food Waste Act, which, however, raises considerable doubts in interpretation. These doubts are increasingly becoming a bone of contention between food sellers and the province environmental inspectors who monitor them.

The act sets forth rules for food handling and food sellers’ obligations to counteract food waste and the negative social, environmental and economic impacts of food waste. Therefore, first of all, these solutions affect the food distribution sector and oblige food sellers in particular to:

  • Conclude an agreement with a non-governmental organisation for donation of food for charitable purposes
  • Conduct education and information campaigns on rational food management and counteracting food waste
  • Submit written annual reports on wasted food
  • Increase the fee for food waste.

Further, the act provides for reporting obligations for public benefit organisations.

What is “food waste”?

Under Polish law, food waste means withdrawing from the distribution stage of food that meets the requirements of food law, in particular due to the approaching expiration date or the date of minimum durability, or due to defects in the appearance of foods or their packaging, and allocating them for disposal as waste.

A linguistic interpretation of this legal definition of “food waste” should not raise doubts, and this reasoning is supported by legislative materials accompanying the bill, which make it clear that the parliament’s intention does not extend to expired food, that is, food that no longer meets the requirements of food law.

Similar conclusions can be drawn from the European Parliament resolution of 19 January 2012 How to avoid food waste: strategies to improve food chain efficiency in the EU (2011/2175(INI)). In Recital 14 of the resolution, the European Parliament noted that “there is confusion around the definition of the expressions ‘food waste’ and ‘bio-waste,’” but that “‘food waste’ is generally understood to mean all the foodstuffs discarded from the food supply chain for economic or aesthetic reasons or owing to the nearness of the ‘use by’ date, but which are still perfectly edible and fit for human consumption and, in the absence of any alternative use, are ultimately eliminated and disposed of, generating negative externalities from an environmental point of view, economic costs and a loss of revenue for businesses.”

The Environmental Inspectorate: past the “use by” date means wasted

The Environmental Inspectorate takes the position that food past the “use-by” date is wasted food. According to the authorities, it is irrelevant that food withdrawn from the sales floor due to the expiration of the minimum shelf life or “use-by” date no longer meets these requirements and is banned from being offered for sale. In the inspectors’ opinion, wasted food should be considered any food that was not donated to a public benefit organisation, and therefore also food that is being recycled (e.g. used as substrate in biogas plants, or for animal feed). But this view contradicts the literal wording of the Combatting Food Waste Act and exposes businesses to administrative liability.

The administrative courts sometimes agree with the inspectorate…

Over the past year, the Polish administrative courts have issued several judgments on food sellers’ complaints in similar cases. One ruling upheld the position of the Environmental Inspectorate that foodstuffs that have been withdrawn from the sales floor due to exceeding the minimum shelf life or “use-by” date should be considered wasted food. First, the court pointed out that the legal definition of “food waste” is not unambiguous in its linguistic interpretation, so it is necessary to resort to other canons of legal interpretation. The court went on to conclude that food once approved for marketing remains so, even when it is no longer fit for human consumption. Besides, in the court’s opinion, the responsibility for bringing the food to such a state lies with the food seller, since it did not donate the food to a public benefit organisation in time.

Finally, the court found that the parliament’s goal was to reduce food waste as much as possible, as indicated by the title of the act and the explanatory memorandum to the bill. On this basis, the court concluded that a food seller, as a business, has the ability to organise its operations to prevent food from becoming expired on a large scale. Taking a different view would mean that food sellers could deliberately allow products to expire in order to avoid charges for wasted food.

This view is unlikely to be shared by other panels, and the judgment is not yet final.

…but more often set aside post-inspection orders

The reasoning behind the other rulings shows that the province administrative courts recognise the parliament’s intention to encourage food sellers to reduce food losses in stores as much as possible. The idea is not to abandon the sale of such foods as, for example, wilted or unsightly vegetables and fruits, day-old bread, or products in damaged packaging, if they are still fit for consumption.

These courts note that food law consists of both EU and national provisions. Meanwhile, pursuant to Art. 52 of the Food and Nutrition Safety Act, foodstuffs may be on the market until the minimum shelf life or “use-by” date. Therefore, there is an obligation to withdraw expired food from distribution, as it no longer meets the requirements of food law. For this reason, it is impossible to treat a similar situation as food waste, especially since such reasoning would set a trap for business operators. Each time, they would have to either pay a fee for food waste (withdrawing food from the sales floor before expiration of the minimum shelf life or “use-by” date) or face sanctions for marketing expired food.

Additionally, in the courts’ view, the concept of food waste should be interpreted strictly, because this provision is grounds for holding food sellers accountable for administrative fines. They point out that donating food to charity should remain voluntary, as an alternative to paying a fee for wasted food.

In April 2023, another panel rejected the position of the Environmental Inspectorate and set aside the post-inspection order, pointing out that the food waste provisions issued at both the national and EU levels do not have such stringent objectives as the administrative authorities ascribe to them. However, it remains to be seen whether the inspectors modify their current practice.

Paulina Wojtkowska, Environment practice, Wardyński & Partners