Who: Kellogg Marketing and Sales Company (UK) Limited (Kellogg’s) and The Secretary of State for Health and Social Care (the government)

Where: United Kingdom

When: 4 July 2022

Law stated as at: 8 August 2022

What happened:

On 4 July, the High Court dismissed Kellogg’s judicial review challenge in regards to aspects of the Food (Promotion and Placement) Regulations 2021. In doing so, the court had to consider Kellogg’s three main arguments and, although these were ultimately rejected, the court’s reasoning does have wider implications for the high in saturated fat, salt and sugar (HFSS) legislative agenda more generally.

Kellogg’s first argument was that the government had not been granted the power to give the food authorities the ability to issue improvement notices as a means of enforcement.

The second issue before the court was whether it was permissible to incorporate the nutrient profiling model (NPM) by reference as the scoring mechanism to determine whether products are classified as being “less healthy”, or whether the NPM should have been part of the regulations themselves.

Thirdly, Kellogg’s challenged the rationality of reasoning in determining whether breakfast cereals were caught by the regulations in that there had been no consideration that breakfast cereals are typically consumed with milk. Kellogg’s also contended that the Department of Health should have considered whether breakfast cereals are assessed on an “as consumed” rather than “as sold” basis.

The court rejected all three of Kellogg’s arguments and the claim was dismissed. The court considered that the government did have the requisite powers under the Food Safety Act to make the legislation and the shortcomings of the HFSS model had been amply considered as part of previous reviews and industry had been given the opportunity to raise any concerns about the use of the model in the 2019 consultation. All of which can be taken to mean that future challenges on the basis of the shortcomings of the model or lack of power to make secondary legislation in this area are unlikely to succeed and the government can with reasonable confidence continue to use the model as the basis for further legislation in relation to childhood obesity.

Kellogg’s has stated that it does not intend to pursue the matter further, meaning the placements rules (in store and online) will still come into force on 1 October 2022.

Why this matters:

This decision means the placement aspects of the regulations will come into force as planned in October 2022. These will apply both online and in-store. This means that as a business, you will now need to focus on ensuring compliance with these rules. It also means that the forthcoming promotion and advertising restrictions on HFSS as the legal avenues for challenge now appear to be largely exhausted.

More generally, it means that the government can confidently use secondary legislation to bring in further restrictions on HFSS products without the scrutiny required for primary legislation. For example, government announcements have suggested that there may be labelling requirements brought in.

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