The High Court has rejected Kellogg’s challenge to the Food (Promotions and Placement) (England) Regulations 2021.
Readers will be aware that the Regulations form part of the UK government’s obesity strategy and impose restrictions on sales promotions for HFSS foods in England, although some of the restrictions have been delayed for (at least) a year, evidently due to the cost-of-living crisis. The Regulations use the Food Standard Agency’s Nutrient Profiling Model (NPM) to decide what foods fall within under the Regulations’ scope.
Kellogg’s challenged the Regulations on several grounds. The key one was that under the NPM, the fact that a portion of, for example, Kellogg's "Frosties" will typically be consumed with milk is not considered in assessing whether it is HFSS. Kellogg’s argued that if the consumption of milk with breakfast cereal were considered, 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 that 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 and in breach of its rights under the ECHR.
It also argued that the enforcement regime in the Regulations is not lawful under existing legislation; and that the NPM should be part of the Regulations and so be subject to parliamentary scrutiny.
The judge rejected the arguments raised by Kellogg's. He found that the power to create the enforcement regime was in existing legislation and therefore was not unlawful. Further, the NPM was an established model. As a result, it did not need to be explicitly evaluated by Parliament when being used to make new rules.
He also made the point that Kellogg’s had had ample opportunity to challenge the NPM over the years and during the 2019 consultation for the Regulations, but had not done so.
In relation to the key claim made by Kellogg's, the judge said that the subject matter of the measure is public health. The root cause of the prevalence of obesity and excess weight in the population is excess calorie consumption. Food promotion and advertising has a marked effect on the choices which the public make in relation to food. Kellogg's had not challenged the inclusion of breakfast cereals on the list of foods and drinks in the Regulations, and breakfast cereals are a significant contributor of calories and free sugars in children's diets and therefore are appropriate to regulate.
The court said that the proposition that the cereals somehow become healthy products if they are consumed with milk was wholly unconvincing, as the addition of milk does not alter the nutritional profile of the products themselves. The role of the NPM in this context is merely to distinguish those breakfast cereals which are HFSS from those which are not. It is a tool to differentiate products according to their nutritional composition rather than to identify how they are eaten or to assess them, or their impact, on this basis. In any event the key aim of the Regulations is to combat childhood obesity. The court rejected the argument that a different approach should be adopted in the case of breakfast cereals. It also said Kellogg’s had not shown that it was disproportionate or irrational to apply the underlying approach of the NPM to breakfast cereals.
The judge also pointed out that the restrictions only cover particular types of promotion, and in the larger outlets and online. They also affect all breakfast cereal manufacturers who sell their products through these outlets, and not just Kellogg’s. Any competitive disadvantage from which Kellogg suffers due to the Regulations is therefore a reflection of the fact that a relatively high proportion of its products and its sales by volume are HFSS, and this is consistent with the aims of the Regulations. Given that the restrictions on promotions only apply to breakfast cereals which are HFSS, the central options for Kellogg’s include using location and price volume promotions to promote its non HFSS products and/or reformulating its HFSS products so that they pass the test under the NPM. Again, this is consistent with the aims of the 2021 Regulations. Moreover, breakfast cereals as a category have significant scope for reformulation to reduce levels of fat, sugar and/or salt and the evidence was that Kellogg's competitors have indeed reformulated their products to reduce levels of sugar.
Kellogg’s have indicated that they will not appeal. This means that the placement aspects of the regulations come into force as planned in October 2022. It remains to be seen if the delayed aspects including price and volume promotions will come into force in October 2023.
“the public health case for the approach under the 2021 Regulations is compelling and I am quite satisfied that it is both proportionate and rational”