The 4th July is well known worldwide for being Independence Day in the United States of America. It was the day in 1776 on which the USA declared its independence from the rule of English King George III and the majority of the population observe the occasion as a National holiday by:
However, the fourth of July 2022 was not just observed as American Independence Day stateside. It was also the day upon which breakfast cereal production, Kelloggs suffered a High Court defeat.
To understand the context of the case it is important to trace events back to 2018 when the UK Government promulgated its Child Obesity Plan in which the government committed to outlaw the advertising of consumable items with high concentrations of fat, sugar and salt or HFSS. For ease the Government separated such items into the following categories:
Following a three-and-a-half-month consultation, the Government produced another document entitled ‘Tackling obesity: empowering adults and children to live healthier lives’ in July 2020 which established plans to enact new laws aimed at stopping the advertising of buy-one-get-one-free deals and other cheap bulk purchases. The Government intended to bring the new legislation in the form of the Food (Promotion and Placement) (England) Regulations 2021 into force in April 2022. However, the enactment has been delayed and will now be introduced in October 2022.
Kelloggs appear to have disagreed with the decision of the UK Government to include breakfast cereals within the guidelines. The food producer submitted that when compiling the rules the UK Government had failed to consider the presence of milk in breakfast cereals. Kelloggs argued that if hypothetically the draftsperson had poured milk into its calculations, less items produced by the manufacturer would fall under the jurisdiction of the High Fat, Salt and Sugar guidelines. The breakfast cereal provider submitted this argument as the nourishing value of the milk would contribute to the scoring.
The esteemed High Court Judge, Mr Justice Linden reviewed the evidence submitted to the court and followed the long-established case law. He interestingly boiled the issue down to the age-old conflict between products which are ‘consumed’ and those which are ‘as sold’. The judge held that in the food production industry this conflict has largely been settled. He commented that whilst it is indisputable that it is possible for cereals to be a proportion of a healthy diet. He then ruled that a manufactured item can be damaging to the health of children if it has surplus amounts of sugar, salt and fat.
Kelloggs commented that they had submitted court proceedings as they considered the draftsperson had incorrectly calculated how to quantify the nutritional value of breakfast cereals. Whilst Kelloggs expressed its disappointment about the judgment it confirmed that it would not be launching appeal proceedings.
The food industry responded to the judgment by warning food producers to avoid absurdly claiming that foods with high concentrations of sugar, salt and fat are healthier merely because they are soaked with milk. Sonia Pombo from the campaign group Action on Salt commented that large food producers should not be trying to turn the political tide by spending vast sums. Instead Mrs Pombo encouraged affected companies to solve problems collaboratively by diverting monies into producing food with less sugar, salt and fat.
ASSESSING FIRMS
#AddleshawGoddard #CMS #Dentons #DLAPiper #EvershedsSutherlandLLP #OsborneClarke #RPC #BakerMcKenzie #Bird&BirdLLP #BryanCaveLeightonPaisner #GowlingWLG #LinklatersLLP #MishcondeReyaLLP #PinsentMasonsLLP #ShoosmithsLLP #
SOURCES USED WHEN WRITING THIS ARTICLE
[1] The Queen on the application of KELLOG Marketing and Sales Company (UK) Limited v Secretary of State for Health and Social Care [2022] EWHC 1710 - Kellogg v SSHSC judgment (judiciary.uk)
[2]Farrell, Steve – Kellogg’s legal challenge to HFSS clampdown rejected by High Court – The Grocer - 4 July 2022 – Kellogg’s legal challenge to HFSS clampdown rejected by High Court | News | The Grocer
[3] UK Government – Restricting promotions of products high in fat, sugar and salt by location and by price: enforcement – 21 July 2021 - Restricting promotions of products high in fat, sugar and salt by location and by price: enforcement - GOV.UK (www.gov.uk)
[4] Action on Salt – High Court rules against Kellogg’s – Public Health Win - 2022 News Section - High Court rules against Kellogg’s – Public Health Win - Action on Salt
[5] Ridler, Gewn – Court Shuts down Kellogg HFSS guidelines legal challenge – Food Manufacture – 5th July 2022 - Court shuts down Kellogg HFSS guidelines legal challenge (foodmanufacture.co.uk)
[6] The Food (Promotion and Placement) (England) Regulations 2021
[7] The Food Safety Act 1990
[8] The Nutrient Profiling Technical Guidance
[9] RPC – HFSS products face wave of new advertising legislation to combat obesity – 08 June 2022 - HFSS products face wave of new advertising legislation to combat obesity | RPC
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