Fighting food waste: A closer look at a recent ruling and law

The United Nations Food and Agriculture Organization (FAO) estimates annual food waste at 1.3 billion tonnes. To put an end to this phenomenon, the issue of reusing unsold products from food retailers is a topic that has recently been addressed concomitantly by the legislature and the Court of Cassation.

Law no. 2016-138 of 11 February 2016 fleshed out the French Environment Code by introducing a new sub-section entitled 'Fighting Food Waste'.

A new article (L.541-15-5) thus requires retailers in the food sector, in abstract terms, to make the use of unsold product fit for human consumption, by donation or processing, one of their priorities in the context of marketing foodstuffs.
In more concrete terms, the new mechanism stipulates that, without prejudice to food safety rules, retailers in the food sector (mass retail, neighbourhood grocers), cannot deliberately make their still-consumable unsold food products unfit for consumption or for any other form of processing set forth in the law (processing intended for animal feed, use in agricultural composting or energy recovery). Failure to comply with this obligation is punishable by a criminal fine of €3,750 (€18,750 for legal persons) and, by way of additional punishment, publication of the judgement issued.

The new Article L.541-15-6 of the Environment Code further establishes the obligation for mass retailers to invite one or multiple approved charitable organisations to negotiate an agreement which sets forth the terms and conditions under which foodstuffs are donated to them free of charge.

Therefore, donations of food unfit for sale but still consumable shall be formalised for mass retailers through contracts. A decree is still forthcoming to specify the terms of application of this new mechanism to enact it.

Meanwhile, the Criminal Chamber of the Court of Cassation also furthered the reuse of unsold food products via a ruling on 15 December 2015 (no. 14-84.906).

The salaried manager of a retail store had been found guilty of theft by the Court of Appeals of Dijon for having taken foodstuffs removed from the sales floor and placed in the waste bin.

The Court of Cassation overruled this decision, finding that theft was not committed in the case because, for one thing, the withdrawn merchandise had become unfit for sale and had been removed from the sales floor and placed in the waste bin in anticipation of its destruction. For the Court of Cassation, these elements demonstrated that the company, which owned the goods, had clearly manifested its intention to relinquish them.

Furthermore, the internal company regulations which prohibited employees from taking the disputed goods 'addressed an objective other than the protection of the rights of the legitimate owner' and had no effect on the actual nature of these goods.

The Court therefore finds that the out-of-date or unsellable products thus placed in the waste bin have become, as a result of this action, 'res derelictae', i.e. relinquished goods that can be appropriated.

In practice, this clarification of property law will have the result of facilitating the reuse of unsold food products from stores, putting an end to sometimes absurd situations. However, there still may be health risks arising from a lack of regulation. To this end, the adoption of the new rules put in place by the Law of 11 February 2016 (to be complemented by a decree), calling in particular for the requirement to define by contract the terms and conditions under which foodstuffs are ceded free of charge, appears appropriate.

Amaury Le Bourdon, avocat