Kellogg Marketing and Sales Company (UK) Ltd & Anor, R (On the application Of) v Secretary of State for Health and Social Care EWHC 1710, 4 July 2022
UKHRB followers of a certain age may remember this advertisement for breakfast cereal, which went “viral” in the days before the internet:
Those were innocent times, when we believed that the combination of wheat, fat and sugar in a breakfast cereal was a good start to a child’s day. Now we know that foods high in sugar are major contributors to the child obesity epidemic in this country. Hence the government regulations on nutritional foodstuffs, introduced last year.
Background law and facts
The Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368 – “the 2021 Regulations”) are part of the Government’s strategy to tackle childhood obesity. They introduce restrictions on the promotion, in supermarkets or other large outlets and online, of food which is classified as high in fat, sugar or salt.
Under these Regulations breakfast cereals are included in the categories of food which may be “Specified food” and therefore subject to the relevant restrictions. Whether a given product within one of these categories is in fact classified as “Less healthy” depends on the score which it is given under the Food Standards Agency’s Nutrient Profiling Model (“NPM”). The NPM requires that the nutrient content of a given product is analyzed per 100g of the food or drink itself, rather than taking into account what the food or drink may be consumed with.
Kellogg’s – one of the main players in the breakfast market – relies on agreements with retailers to place its products in parts of stores (eg near the checkout, in a queuing area, at the end of an aisle) which maximize sales and to promote its products on the retailers’ websites.
Arguments before the Court
Kellogg’s pleaded claims were based on a number of grounds, the main one being that the Defendant failed to have regard to a relevant consideration, namely the fact that breakfast cereals are typically consumed with milk. This, they maintained was part of the nutrient profile of breakfast cereals.
Kellogg’s fundamental complaint about the 2021 Regulations was that, under the NPM, the fact that a portion of, for example, Kellogg’s “Frosties” would typically be consumed with milk, was not taken into account in assessing whether this product was food which is classified as high in fat, sugar or salt (“HFSS”). If the consumption of milk with breakfast cereal were taken into account, fewer Kellogg products would be classified as HFSS because the nutrient values of the added milk would contribute to the scoring. Kellogg argued that an approach which measured the relative levels of fat, sugar or salt in the product itself, rather than the health impact of the product as typically consumed, was disproportionate and irrational.
The claimants argued, further, that the assessment of the nutrient profile of breakfast cereals without including milk disproportionately infringed their right to peaceful enjoyment of its possessions contrary to Article 1 of Protocol 1 of the European Convention on Human Rights and / or its right to freedom of expression, contrary to Article 10 ECHR. Kellogg’s claimed that, contrary to the ECHR, the government could not show that assessment of breakfast cereal without milk [my italics] was rationally connected to its aim of reducing the consumption of HFSS products and childhood obesity. Nor, they claimed, was the “as sold” approach (ie without milk) was the least intrusive means of achieving its aims. The Defendant, they argued, could not show that the approach under the NPTG was the least intrusive means of achieving its aims given that a similar approach could be taken to that which is taken to products which require to be “reconstituted” before they are eaten. (such as custard powder, for example).
The claimants maintained that the measures were outwith section 10 of the Food Safety Act which, they argued, does not confer a power to enact regulations which expand the scope for issuing improvement notices in this context.
The claimants’ argument was, in essence, that the NPM should assess breakfast cereals on an “as consumed” basis, to reflect the fact that they are normally eaten with milk, rather than an “as sold” basis which looks at 100g of the dry product.
Linden J noted that the NPM measures the composition of a given food rather than a meal or snack of which it may form part, or a dish of which it may be an ingredient or to which it is added. In the case of breakfast cereals, the food is the breakfast cereal. The NPM therefore measures the nutritional values of the breakfast cereal itself rather than the breakfast, just as Schedule 1 to the 2021 Regulations applies to savory snacks “Whether intended to be consumed alone or as part of a complete meal”. The FTPG advises that
Nutrient profile scores should usually be calculated for a product as sold. In cases where a product needs to be reconstituted before it is eaten, for example custard powder, the nutrient profile score should be based on 100g of the product as reconstituted according to the manufacturers instructions. ”
Regulation 10 of the Food (Promotion and Placement) (England) Regulations 2021 enables food authorities to issue improvement notices where there are reasonable grounds for believing that a person is failing to comply with the Regulations. It was not, in the court’s opinion, ultra vires the Food Safety Act 1990. Further, there was nothing impermissible in the Regulations incorporating by reference the Department of Health’s “nutrient profiling technical guidance” as the basis for determining whether a food product should be subject to restrictions on its promotion.
Given that the regulations made pursuant to the FSA created criminal offenses for breach, it would be surprising if
Parliament had nevertheless set its face against the use of improvement notices as part of the enforcement regime unless such notices were specifically authorized by section 10 of the FSA. [para 53]
Having concluded that the assessment of 100g of the food under the NPM ensured “a transparent, like-for-like comparison which is workable, scientifically accurate and robust”, the Court dismissed the application.
Reasoning behind the Court’s decision
The issue of “as sold versus as consumed” issue had been settled for more than a decade when the Regulations were being made and so the Secretary of State was not obliged to consider it when Kellogg raised it:
The fact that Kellogg came forward at the eleventh hour, seeking to reopen decisions as to the “as sold vs as consumed” approaches which had been taken more than a decade earlier, and re-taken in 2020/2021, did not render those decisions irrational or mean that it would be irrational for the Defendant to proceed with those decisions rather than pause the process and make further inquiries. [Para 200]
As to the alleged breaches of Articles 10 and 11 of the ECHR, the court had no concerns that there might be unfairness to Kellogg or arbitrariness in the effects of the NPM on its business. On the contrary, the public health case for the approach under the Regulations is compelling and the NPM approach is both proportionate and rational. The court also rejected the argument that two aspects of the Regulations were made ultra vires. This was a case, said Linden J, In which “a significant degree of deference should be accorded to the decision maker (s)” [para 213].
This is not a case where no thought was given to the relevant matters and there is nothing to which the court ought to show deference. It is a case where the expert judgment of the public health, nutrition and other experts who worked on the development and review of the NPM, as well as the judgment of the Defendant, should be accorded respect by the court.
In the context of “an epidemic of childhood obesity”, the consequent impact on the NHS, and the fact that foods on promotion account for around 40% of all expenditure on food and drinks consumed at home (and that higher sugar products are promoted more than other foods).
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