Background

The Food (Promotions and Placement) (England) Regulations 2021 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 (HFSS) and is therefore “less healthy”.

Under Schedule 1 to the 2021 Regulations, breakfast cereals are included in the categories of food which may be “specified food” and are therefore subject to the relevant restrictions. Whether a product within one of these categories is classified as “less healthy” depends on the score it is given under the Food Standards Agency’s Nutrient Profiling Model (NPM), which was devised in 2004/2005 and is required by the 2021 Regulations to be applied in accordance with its associated technical guidance (Technical Guidance). Both form part of a document entitled “Nutrient Profiling Technical Guidance” (NPTG), published by the Department of Health in January 2011. The NPM requires that the nutrient content of a given product is analysed per 100g of the food or drink itself, rather than taking account of what the food or drink may be consumed with.

Kellogg Marketing and Sales Company (UK) Ltd (Kellogg) is part of the Kellogg group of companies, well-known for manufacturing breakfast cereals. Under the 2021 Regulations, most of Kellogg’s breakfast cereals will be classified as “less healthy”. Kellogg has agreements with retailers to place its products in certain areas of stores (e.g., near the checkout, in a queuing area, at the end of an aisle) that maximise sales (Location Promotions), and to promote its products on the retailers’ websites. 30% of its HFSS products are sold through Location Promotions.

Kellogg brought judicial review proceedings in relation to the 2021 Regulations, saying that they will impact its sales and damage its marketable goodwill. It argued that, under the NPM, if the consumption of milk with Kellogg cereal were considered instead of just the cereal on its own, 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 measures 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.

Kellogg said that for products that must be mixed or cooked with liquid before being consumed (e.g., custard powder, cocoa powder, dried soup and dried pasta), the Technical Guidance specifies that the calculation of the nutrient profile is to be based on 100g “of the product as reconstituted according to the manufacturer’s instructions”. It argued that breakfast cereals were a similar product, and a similar approach should therefore be taken.

Decision

Kellogg challenged the 2021 Regulations on four grounds.

First, Kellogg contended that regulation 10 of the 2021 Regulations, which provides for food authorities to be able to issue improvement notices where there are reasonable grounds for believing that a person is failing to comply with the Regulations, was ultra vires, as the Secretary of State for Health and Social Care did not have the power, under s 10 of the enabling legislation (the Food Safety Act 1990 (FSA)), to make regulations for improvement notices in relation to the subject matter of the 2021 Regulations.

Kellogg said that s 10 of the FSA gives the Secretary of State the power to issue improvement notices only in relation to alleged breaches of regulations specified in s 10(3), which cover different matters to those covered by the 2021 Regulations. These express statutory limitations under s 10(3) could not be “overridden” by a general power to make regulations that apply s 10 of the FSA with modifications or adaptations, it said.

Mr Justice Linden disagreed, finding that s 10 of the FSA was not “overridden” by the subordinate legislation, i.e. the 2021 Regulations, because s 10 was not altered in any way by the 2021 Regulations. In Linden J’s view, the question of further applications of improvement notices under the FSA was left open by Parliament and the subsequent 2021 Regulations then simply enlarged the power to issue improvement notices in a way that was consistent with the FSA.

Secondly, Kellogg also argued that s 16 of the FSA, which enables further provision to be made by the Secretary of State by regulations or orders in relation to food safety and consumer protection, did not authorise the incorporation by reference of further rules set out in another document, in this case the NPTG. In Kellogg’s view, s 16(1) of the FSA, which permits the Secretary of State “by regulations [to] make…provision for…regulating” the relevant matters requires that all rules for determining whether a certain food should be classified as HFSS must be contained in the statutory instrument itself. Reference to the NPTG in regulation 3(4) of the 2021 Regulations was therefore contrary to the requirements of s 16 of the FSA and the Secretary of State’s approach was ultra vires.

Linden J did not accept that the enabling power under s 16 meant that the whole of the provision, together with all the determinative criteria or rules, had to be set out in one document. In Linden J’s view, Parliament had clearly contemplated that provision for regulating a given activity in relation to food could be made by regulations that referred to or incorporated external benchmarks, formulae for assessment or other standards, i.e. as contained in the NPTG. This ground was also therefore rejected.

Thirdly, Kellogg alleged irrationality of reasoning by the Secretary of State. It did not challenge the decision to include breakfast cereals on the list of potential “specified food” under the 2021 Regulations, but it said that this increased the need for a rational consideration of how “less healthy” breakfast cereals should be identified. Kellogg said that the Secretary of State had failed to have regard to a relevant consideration when making the 2021 Regulations, in that there had been no assessment of whether assessing the nutrient profile of breakfast cereals without considering that they are typically consumed with milk was appropriate.

Linden J held that the Secretary of State was not bound to consider the matters pleaded by Kellogg. He was not bound to have made further inquiries during the decision-making process undertaken between 2004 and 2009, when the NPM were developed and subsequently reviewed. The evidence showed that it was made clear to the Secretary of State that the approach under the NPM was to assess the nutritional value of the food itself. He was therefore aware of the rule under challenge and had approved it. He evidently considered that he was sufficiently well informed about the approach that would be taken to identifying foods which were HFSS.

Further, the evidence showed that the relevant matters had been carefully considered during the development and review of the NPM. The issues that Kellogg had raised then, and now, had been resolved. The approach under the NPM had then been applied without controversy for more than a decade. Further, there had been ample opportunity for Kellogg to raise the issues in a consultation held in 2019, which it did not do. The fact that Kellogg came forward at the eleventh hour, seeking to reopen decisions that had been taken more than a decade earlier did not render those decisions irrational or mean that it would be irrational for the Secretary of State to proceed with those decisions rather than pause the process and make further inquiries.

Fourthly, Kellogg said that the assessment of the nutrient profile of breakfast cereals without including added milk disproportionately infringed its 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 argued that the Secretary of State could not show that the assessment of breakfast cereal without milk was rationally connected to its aim of reducing the consumption of HFSS products and childhood obesity, and nor could he show that the approach under the NPTG was the least intrusive means of achieving its aims, given that a similar approach to that used for products that must be reconstituted before being eaten could be taken. It also alleged that there was irrationality of outcome “for the same reasons” and that the approach to the assessment of breakfast cereals fell outside the range of approaches reasonably open to the Secretary of State.

Linden J said that the question was whether the Secretary of State could “justify” the relevant infringements. There was no issue that the aim of the impugned measure was legitimate, i.e. “public safety…. the protection of health” (Article 10(2)) and “the public interest” (Article 1 of Protocol 1). The dispute was as to proportionality.

Linden J said that this was a case in which a significant degree of deference should be accorded to the decision maker(s). 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 Secretary of State, should be accorded respect by the court.

Even if that were wrong, in Linden J’s view the relevant aspects of the Secretary of State’s approach under the 2021 Regulations were proportionate and rational. The measure under challenge was the placing of restrictions on the promotion of food products classified as HFSS. The aim of this measure, as stated from the outset of the 2019 consultation and in the Explanatory Memorandum to the 2021 Regulations was: “…to reduce overconsumption of HFSS products that can contribute to children being overweight or living with obesity….to shift the balance of promotions towards healthier options and maximise the availability of healthier products available on promotion…”.

In Linden J’s view, when this was focused on, most of Kellogg’s arguments fell away as they did not engage with the point. Crucially, there was clearly a rational connection between these aims and the impugned measures in the context of a well-known childhood obesity problem. The approach of the 2021 Regulations specifically reflected their stated aims.

Linden J examined the context, which was obesity in children, excess sugar consumption and the evidence that food promotion and advertising have a marked effect on the choices that the public makes in relation to food. The point was that if a cereal contains excess fat, sugar or salt, it will be adverse to a child’s health. Mixing a breakfast cereal high in sugar with milk did not alter the fact that it was still high in sugar. The approach advocated by Kellogg to measure the “actual health impact” of a breakfast cereal was problematic. It measured the impact of the cereal combined with other products and sought to take advantage of the fact that the other products were lower in fat, sugar and/or salt or contained other “compensating” ingredients. The suggestion that “Frosties” should not be regarded as a less healthy product because of the nutritional value of the milk with which they might be consumed was “surprising”, Linden J said, and the proposition that they somehow became healthy products if they were consumed with milk was “wholly unconvincing”; the addition of milk did not alter the nutritional profile of the products themselves. Kellogg’s “as consumed” approach was inconsistent with the aims of the 2021 Regulations.

Further, Linden J said, breakfast cereals can also be eaten dry, with yoghurt, juice water, non-dairy milk etc. Therefore, it was not accurate to say that Kellogg’s advocated approach of taking dairy milk into account measured the actual health impact of a breakfast cereal.

As for the “reconstituted” food argument, Linden J said that foods that need reconstituting are different because they cannot sensibly be eaten without the addition or use of liquid and/or other ingredients and/or being cooked or prepared.

Further, Linden J said, the restrictions are only to certain types of promotion, in larger outlets and online. They also affect all breakfast cereal manufacturers who sell their products through these outlets, and not just Kellogg. Any competitive disadvantage to Kellogg as a result of the 2021 Regulations was therefore a reflection of the fact that a relatively high proportion of its products and its sales by volume were HFSS and was consistent with the aims of the 2021 Regulations.

Looking at Kellogg’s arguments and evidence more broadly, there was nothing to cause concern 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 2021 Regulations was compelling, Linden J said, and he was satisfied that it was both proportionate and rational.

The claim was dismissed. (R (Kellogg Marketing and Sales Company (UK) Ltd) v Secretary of State for Health and Social Care [2022] EWHC 1710 (Admin) (4 July 2022) — to read the judgment in full, click here).