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HMRC internal manual

VAT Food

Hot and cold take-away food: satisfying food safety regulations

The Food Safety (Temperature Control) Regulations (SI 2006/14, formerly SI 2200/1995) state the maximum time a hot product can be left before it must either be kept at a minimum temperature (63°C) if it is to be sold hot, or chilled to a maximum temperature (8°C) if it is to be sold cold. The difficulty in this area is establishing whether the supplier’s purpose in keeping the food hot is to satisfy the food safety regulations or to enable it to be consumed while still hot.

Prior to the 2012 changes to the law many businesses claimed that their food was being kept hot merely in order to comply with these regulations, and not for the purpose of enabling it to be consumed at a temperature above the ambient air temperature.

The main pre 2012 cases in this area follows:

Lewis’s Group Ltd (V.4931) 

Phillip James Bridgewater (V.10491) 

Marjorie Ann Malik (V.14718) 

A Leach (T/As Carlton Catering) (V.17767) 

If you are faced with a pre 2012 claim that compliance with food safety regulations was the supplier’s predominant purpose for heating the food, it is important to consider the credibility of that assertion from a commercial perspective. Bear in mind that the supplier normally has a choice between heating, or chilling the food in order to comply with the regulations, and the former may entail greater cost to the business than the latter. Hence if they have chosen to incur additional costs by heating the food, it may be that compliance with the regulations is not their primary aim, and there are likely to be other commercial reasons for that decision.

It could be, as in the cases quoted above, that the business has a genuine commercial purpose other than to enable the food to be consumed hot, and heating the food is the most practical way for them to achieve that purpose, whilst also complying with food safety regulations. Alternatively, it could be that their liability to comply with the regulations has arisen as a result of their decision to supply food for consumption whilst hot. As the tribunal in Domino’s Pizza Group Ltd (V.18866) observed, in dismissing the appellants claim that compliance with food safety regulations was a significant part of its purpose in heating the food.

‘It would seem that these are regulations needing to be complied with if one has the purpose of enabling the food to be consumed hot. Therefore, such claims need to be approached with some care as compliance with these laws is an inevitable consequence where a trader has the actual purpose of heating food to enable it to be consumed while hot’.

For all periods after 1 October 2012 all 5 of the new tests outlined in VFOOD4220 need to be considered and if any one is met then S/R applies.