TC09646 - [2025] UKFTT 01123 (TC)

By reference to the invoices we find that the Appellant only supplied the Chargers and did not NO2 canisters of other sizes. We do so on the basis that:

In consequence we do not place any weight on the information provided about or uses of the infuse stream N2O cannisters.

The Appellant’s customers were not retail customers. The units in which the Chargers were sold were boxes of 600 chargers, each capable of whipping 500ml of cream, such that each box would have facilitated the whipping of 300 litres of cream. In respect of the customers that were shown as named individuals the customers in question were buying 45 – 90 boxes of 600 Chargers and spending €7,000 - €14,000 on those purchases. These named individuals were not, in our view, retail customers.

It is accepted that the Chargers are not sold in supermarkets. We do not accept the bold and assertion of Mr Parr that the Chargers are sold by corner shops and off-licences. He did not seek to establish that any of his customers ran such establishments or otherwise evidence the assertion he made. We therefore find it more likely that the Chargers are specialist equipment which may be used domestically but are largely used for catering.

We accept that there is an up-front cost of buying a Cream Whipper which exceeds £20. However, whether that renders, over time, cream whipped by the Cream Whipper more or less expensive that purchase of canned instant whipped cream (squirty cream) would depend on the volume of whipped cream used. Eventually the marginal cost of a portion of cream whipped using the Cream Whipper and the Charger may be lower than buying squirty cream.

We have no evidence other than Mr Parr’s unsupported assertion that the Chargers contain trace elements, and we find that it is more likely that they contain only N2O.

The Chargers are for use with a Cream Whipper. As such they are intended for culinary use and principally for use in whipping cream. The only evidence we were provided with which might indicate the Chargers might be used for beverages was in the description on the invoices. However, we prefer the evidence on the packaging which states that the Chargers are to be used with a Cream Whipper for the purposes of whipping cream. We accept they may also be used to make foams, mousses etc. and that they are used in the production of food products.

The packaging is clear that the N2O in the chargers should not be inhaled.

If consumed on its own the N2O is tasteless and all but imperceptible. When used with the Cream Whipper the N2O does not affect the taste of the cream or other fat solution (mousse sauce etc.) its only effect is on the consistency of the whipped foodstuff.

On the evidence of Mr Tallon it meets the definition of “food” for food law purposes because it is at least intended that it may be ingested (depending on the dissipation of the N2O prior to consumption. It is also likely to meet the definition of a food ingredient as once applied to the cream (or other food) it is to be presumed that the intention is that the whipped food is intended to be consumed before the N2O has dissipate. the N2O in the chargers certainly meets the definition of and is regulated as a food additive for the purposes of food regulation and therefore, by definition, it is not a substance normally consumed as food. As an additive it is identified by its E number E942.

Its purpose, when used as directed on the packaging in which it is sold, is as a processing aid in the form of a propellant and/or as a foaming agent and the Chargers.

N2O does not contain protein, fat, carbohydrate, or fibre; it is calorie free and so despite its propulsive properties when used with the Cream Whipper it does not provide the human body with energy. It may be used in the body as part of certain biochemical processes but need not be ingested for these purposes.

We cannot determine how much, if any, of the N2O would be ingested by a human consuming whipped cream made using a Cream Whipper and the Chargers. On the evidence before us it cannot exceed 0.79g but is likely to be less than that and the amount is likely to change as the time elapses between the cream leaving the Cream Whipper and consumption.

We accept that N2O is used, in limited amounts, by the body; however, the Appellant presented no evidence (and Professor Niranjin’s letter did not seek to substantiate) that N2O dispensed from the Charger was intended to be absorbed for the purposes of ensuring the body had the N2O it needs. Mr Tallon accepted that to the extent that the N2O was ingested it would be expected that some may be metabolised, but we consider that is a likely (possibly necessary) inference from the fact that some is ingested and does not result in a conclusion that the N2O in the Chargers is used for the purposes of providing the body with N2O.

The Chargers are certified as Halal compliant. However, the certificate does not state that they are compliant as a food product.