Mechanically Separated Meat (MSM): Supreme Court confirms broad interpretation of MSM against Newby Foods for Pork & Chicken

This week the Supreme Court found in favour of the Food Standards Agency (FSA) in that an interpretation of Mechanically Separated Meat (MSM) should include that which had been previously known as Desinewed meat (DSM). This is a retreat from the previous position of the High Court which had sought to interpret requirements in a way that promoted the best sustainable development and least waste. 

This case concerned a series of legal arguments that had been ongoing since 2012 concerning the extraction of meat from the bone and specifically the interpretation of point 1.14 of Annex I to EU Regulation 853/2004 (the Regulation) on classification of MSM.

The Supreme Court held that the proper interpretation of point 1.14 of the Regulation required the correct application of the guidance provided by the Court of Justice of the European Union (CJEU) in a previous judgement of 2014.  This identified 3 cumulative criteria in defining MSM:

1. the use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached;
2. the use of methods of mechanical separation to recover that meat; and
3. the loss or modification of the muscle fibre structure of the meat recovered through the use of those processes

The CJEU found that any meat product which satisfies these 3 criteria must be classified as MSM, irrespective of the degree of loss or modification of the muscle fibre structure, provided the loss or modification is greater than that which is strictly confined to the cutting point (‘the cutting point qualification’).

Numbers 1 and 2 were accepted by both the FSA and Newby Foods.

It was the application of 3, the use of second mechanical method to extract meat and whether this needed to involve ‘significant’ modification to the muscle fibre structure or not that was contentious.

The Supreme Court upheld the CJEU ruling and found that secondary mechanical methods to remove meat and a narrow interpretation involved cutting intact muscles rather than simply meat being severed or separated during the process of recovery meant that Newby Foods method of extraction would constitute and fall under the wider definition of MSM.

This therefore represents a rowing back from the High Court position of Mr Justice Edwards-Stuart in 2016, who had adopted a more expansive reading of the ‘cutting point qualification’ with an overall intention towards the promoting of sustainable development.

Summary

Whilst this judgement does provide clarity it is unlikely to assist consumers or sustainability by giving such a broad brush interpretation to MSM.

The previous more expansive ‘cutting point qualification’ ensured there was muscle tone and sinews to be separated; whereas the latest judgement on the narrow interpretation simply references a further mechanical separation.  This is likely to either remove the incentive for seeking to recover more meat (resulting in greater waste) or alternatively, less concern over the second mechanical process and as a result more, poorer quality MSM being produced.

It is disappointing that the discretion and interpretation based on sustainable development was not adhered to and that more pressure for this to be taken into account is not applied.