July 6, 2022
Older UKHRB followers might remember this ad for breakfast cereals, which went “viral” in the days before the internet:
It was an innocent time, when we thought the combination of wheat, fat and sugar in a breakfast cereal was a great start to a child’s day. We now know that foods high in sugar are major contributors to the childhood obesity epidemic in this country. Hence the government regulations on nutritional foodstuffs, introduced last year.
Legal background 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 foods classified as high in fat, sugar or salt.
Under this regulation, breakfast cereals are included in the categories of foods that can be “specified food” and therefore subject to applicable restrictions. If a given product in one of these categories is in fact classified as “less healthy” depends on its score under the Food Standards Agency’s Nutrient Profiling Model (“NPM”). The NMP requires that the nutrient content of a given product be analyzed per 100g of the food or drink itself, rather than considering what the food or drink may be consumed with.
Kellogg’s – one of the major players in the breakfast market – relies on agreements with retailers to place its products in parts of the stores (for example near the checkout, in a queuing area, at the end of an aisle) that maximize sales and promote their products on retailer websites.
Arguments before the Court
Kellogg’s claims were based on a number of grounds, the main one being that the defendant failed to take into account a relevant consideration, namely the fact that breakfast cereals are usually eaten with milk. According to them, it was part of the nutritional profile of breakfast cereals.
Kellogg’s fundamental complaint about the 2021 Settlement was that, under NPM, the fact that a part of, for example, Kellogg’s “Frosts” would typically be consumed with milk, was not taken into account in determining whether this product was a food classified as high in fat, sugar or salt (“HFSS”). If the consumption of milk with breakfast cereals were taken into account, fewer Kellogg products would be classified as HFSS because the nutritional values of the added milk would contribute to the rating. Kellogg argued that an approach that 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 further argued that the assessment of the nutrient profile of breakfast cereals without added milk disproportionately interfered with their right to peaceful enjoyment of their possessions, contrary to Article 1 of Protocol 1 of the European Convention on Human Rights and/or their right to freedom of expression, contrary to Article 10 ECHR. Kellogg’s claimed that, unlike the ECHR, the government could not prove that the assessment of breakfast cereals without Milk [my italics] was rationally linked to its goal of reducing the consumption of HFSS products and childhood obesity. According to them, the “as sold” approach (meaning without milk) was also not the least intrusive way to achieve its objectives. Defendant, they argued, could not demonstrate that the approach under the NPTG was the least intrusive means of achieving its objectives since a similar approach could be taken to that taken for products that must be “reconstituted” before being consumed. (such as custard powder, for example).
The plaintiffs argued that the measures were contrary to Section 10 of the Food Safety Act which they claim does not confer the power to issue regulations expanding the scope of improvement notices in this context. .
The plaintiffs’ argument was, in essence, that the MNP should rate breakfast cereals on an “as consumed” basis, to reflect the fact that they are normally consumed with milk, rather than on an “as consumed” basis. as sold” which considers 100 g of dry product.
Linden J noted that the NMP measures the composition of a given food rather than a meal or snack of which it may be 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 breakfast cereals. The NPM therefore measures the nutritional values of the breakfast cereals themselves rather than the breakfast, just as Schedule 1 of the 2021 Regulations applies to salty snacks “whether intended to be eaten on its own or as part of a full meal”. The FTPG advises that
Nutrient Profile scores should generally be calculated for a product as sold. In cases where a product needs to be reconstituted before consumption, for example custard powder, the nutrient profile score should be based on 100g of the product as reconstituted according to the manufacturer’s instructions.”
Regulation 10 of the Food (Promotion and Placement) (England) Regulations 2021 allows food authorities to issue improvement notices when there are reasonable grounds to believe that a person is not complying with the Regulations. He was not, in the opinion of the court, ultra vires the Food Safety Act 1990. Further, there was nothing objectionable in the Regulations incorporating by reference the Department of Health’s “technical guidance on nutrient profiling” as the basis for determining whether a food product should be subject to restrictions on his promotion.
Given that regulations made under the RSA have created criminal offenses for breach, it would be surprising if
Parliament had nevertheless objected to the use of improvement notices under the enforcement scheme, unless such notices were specifically permitted by section 10 of the FSA. [para 53]
Having found that evaluating 100g of the food under the NMP warranted “a transparent, identical, feasible, scientifically accurate and robust comparison,” the Court dismissed the claim.
Reasons for the Court’s decision
The issue of “as sold versus as consumed” had been settled for more than a decade when the Regulations were developed and therefore the Secretary of State was not obligated to consider it when Kellogg raised :
The fact that Kellogg came forward at the eleventh hour, seeking to reopen decisions on the “as sold vs. as consumed” approaches that had been taken more than a decade earlier, and resumed in 2020/2021, does not did not make those decisions irrational or mean that it would be irrational for the Respondent to proceed with those decisions rather than suspend the process and do further research. [Para 200]
With respect to the alleged violations of Articles 10 and 11 of the ECHR, the court did not fear that there might be any injustice to Kellogg or arbitrariness in the effects of the NPM on its activities. On the contrary, the public health arguments in favor of the approach under the Regulations are compelling and the NPM’s approach is both proportionate and rational. The court also rejected the argument that two aspects of the Regulations were ultra vires. This was a case, said Linden J, in which “a significant degree of deference should be given to the decision maker(s)” [para 213].
This is not a case where no thought has been given to the relevant issues and there is nothing about which the court should show deference. This is a case where the expert judgment of public health, nutrition and other experts who worked on the development and revision of the MNP, as well as the judgment of the respondent, must be respected by the tribunal.
Against the backdrop of “an epidemic of childhood obesity”, the resulting impact on the NHS and the fact that promotional foods account for around 40% of all food and drink expenditure consumed at home (and that products with a high sugar content are promoted more than other foods).