Kellogg Marketing and Sales Company (UK) Ltd v Secretary of State for Health and Social Care

JurisdictionEngland & Wales
JudgeMr Justice Linden
Judgment Date04 July 2022
Neutral Citation[2022] EWHC 1710 (Admin)
Docket NumberCase No: CO/3863/2021
CourtQueen's Bench Division (Administrative Court)
Year2022

The Queen on the application of

Between:
(1) Kellogg Marketing and Sales Company (UK) Limited
(2) Kellogg Company (a company incorporated in Delaware, USA)
Claimants
and
Secretary of State for Health and Social Care
Defendants

[2022] EWHC 1710 (Admin)

Before:

THE HONOURABLE Mr Justice Linden

Case No: CO/3863/2021

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Tom Hickman QC and Christopher Knight (instructed by DLA Piper LLP) for the Claimants

Sir James Eadie QC, Azeem Suterwalla and Antonia Fitzpatrick (instructed by the Government Legal Department) for the Defendants

Hearing dates: 27–28 April 2022

APPROVED JUDGMENT

This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 4 July 2022 .

Mr Justice Linden

Introduction

3

The grounds on which the 2021 Regulations are challenged

4

The Food Safety Act 1990

5

The Food (Promotion and Placement) (England) Regulations 2021

8

The Nutrient Profiling Technical Guidance

10

Ground 1

12

The authorities

15

Discussion and conclusion on Ground 1

22

Ground 2

25

The competing contentions

25

The authorities

26

Conclusion on Ground 2

32

Ground 3A

33

The competing arguments

33

Analysis of the evidence

34

Legal framework

49

Conclusions on Ground 3A

50

Ground 3B

51

The issue

51

Discussion and conclusions on Ground 3B

54

Introduction

1

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 (“HFSS”) and therefore “less healthy”.

2

Under Schedule 1 to the 2021 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”), which was devised in 2004/2005 and is required by the 2021 Regulations to be applied in accordance with its associated technical guidance (the “Technical Guidance”). Both form part of a document entitled “Nutrient Profiling Technical Guidance” (“the NPTG”) which was 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.

3

The Claimants (“Kellogg”) are part of a well-known group of companies which manufactures breakfast cereals. Under the 2021 Regulations, the majority of Kellogg's breakfast cereal products, and therefore 54.7% of the breakfast cereal currently sold by Kellogg, will be classified as less healthy assuming that it does not take steps to reduce the levels of sugar, fat and/or salt in those products. Kellogg makes use of agreements with retailers to place its products in parts of stores (e.g. near the checkout, in a queuing area, at the end of an aisle) which maximise sales (“location promotions”), and to promote its products on the retailers' websites. 30% of its HFSS products are sold through location promotions. It also sells 3.5% of its breakfast cereal on price promotions (e.g. “buy one get one free” or “25% off if you buy 6”). Kellogg says that the 2021 Regulations will therefore impact on sales of its products. Its marketable goodwill will also be damaged through a combination of reduced brand visibility, and damage to its reputation more generally as a result of the majority of its products being classified as HFSS.

4

Kellogg's fundamental complaint about the 2021 Regulations is that, under the NPM, the fact that a portion of, for example, Kellogg's “Frosties” will typically be consumed with milk is not taken into account in assessing whether this product is 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 argue 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, is disproportionate and irrational.

5

Kellogg point out that in the case of products which require to be mixed or cooked with liquid before they are 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”. They argue that breakfast cereals are a similar product, and a similar approach should therefore be taken.

The grounds on which the 2021 Regulations are challenged

6

The 2021 Regulations are therefore challenged on four grounds. The first two of these are vires objections to two aspects of the Regulations, and the third and fourth directly raise Kellogg's commercial concerns.

7

Ground 1 contends 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, is ultra vires. It is contended that the Defendant does not have the power, under the relevant enabling legislation – the Food Safety Act 1990 (“the FSA”) and the Regulatory Enforcement and Sanctions Act 2008 (“the 2008 Act”) — to make regulations which provide for improvement notices in relation to the subject matter of the 2021 Regulations.

8

Ground 2 contends that it is impermissible for regulation 3(4) of the 2021 Regulations to incorporate the NPTG by reference as the basis for scoring a given product, so as to determine whether the product is “less healthy”. Kellogg argues that section 16(1) of the FSA, which permits the Defendant “by regulations [to] make…provision for…regulating” the relevant matters requires that all applicable rules or criteria for determining whether a given specified food should be classified as HFSS must be contained in the statutory instrument itself. The Defendant's approach in this case is therefore ultra vires, and it is unlawful in that it frustrates sections 16 and 48(2) of the FSA and sections 1(1) and 5 of the Statutory Instruments Act 1946 (“the 1946 Act”).

9

Ground 3A alleges irrationality of reasoning on the part of the Defendant. The decision to include breakfast cereals on the list of potential “specified food” is in Schedule 1 to the 2021 Regulations is not challenged, but it is said that this increased the need for a rational consideration of how “less healthy” breakfast cereals were to be identified. Kellogg's pleaded case in relation to this issue is that the Defendant failed to have regard to a relevant consideration, namely that there had been no assessment of the appropriateness of assessing the nutrient profile of breakfast cereals without taking into account the fact that they are typically consumed with milk. The Defendant was not asked to, and did not, consider whether breakfast cereals should be assessed with or without milk and was not aware of “the over-inclusive nature of the Regulations as they applied to breakfast cereals (by contrast…. to other dried foods)”. Nor did he take account of any prior consideration of the application of the NPM to breakfast cereals when the model was under development: see the Amended Statement of Facts and Grounds (“ASFG”) at [85].

10

It is also contended by Kellogg that the Defendant failed to discharge his Tameside duty of reasonable inquiry by reviewing the work which was done between 2004 and 2009 in relation to the NPM and the Technical Guidance and, in particular, the extent to which there was expert consideration of whether it was appropriate to assess breakfast cereals on an “as consumed” rather than an “as sold” basis. Had the Defendant done so, he would have been discovered that this was an issue which had not been resolved and he would have been bound to take steps to consider it further: ASFG at [85A].

11

Ground 3B alleges: (a) that the assessment of the nutrient profile of breakfast cereals without including added milk disproportionately infringes Kellogg's right to peaceful enjoyment of its possessions contrary to Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1 ECHR”) and/or its right to freedom of expression, contrary to Article 10 ECHR. It is said that the Defendant cannot show that the assessment of breakfast cereal without milk is rationally connected to its aim of reducing the consumption of HFSS products and childhood obesity, and nor can he show that the approach under the NPTG is 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. It is also alleged: (b) that there is irrationality of outcome: “ for the same reasons”, the approach to the assessment of breakfast cereals falls outside the range of approaches reasonably open to the Defendant: ASFG at [100].

12

The 2021 Regulations were laid before Parliament in draft on 21 July 2021. They were approved by the House of Commons on 16 November 2021 and by the House of Lords on 24 November 2021, and they were made on 2 December 2021. They are due to come into effect, in respect of location promotions,...

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1 firm's commentaries
  • Court Rejects Challenge To New Food Regulations Designed To Tackle Childhood Obesity
    • United Kingdom
    • Mondaq UK
    • August 11, 2022
    ...(on the application of Kellogg Marketing and Sales Co (UK) Ltd) v Secretary of State for Health and Social Care [2022] EWHC 1710 (Admin) the High Court dismissed all four grounds of a challenge brought by Kellogg to the Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/136......

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