Court shuts down Kellogg HFSS guidelines legal challenge
The manufacturer launched its challenge against the guidelines in April, where it claimed the rules unfairly represented breakfast cereals.
It argued that the guidelines didn’t account for the presence of milk consumed with a bowl of cereal. Allowing for milk, fewer Kellogg products would be classified as HFSS because the nutrient values of the added milk would contribute to the scoring, the company claimed.
However, Mr Justice Linden said the issue of 'as sold' versus 'consumed' had long since been resolved, understood and accepted in the sector. While there was no dispute breakfast cereals could be part of a healthy diet, 'if it contains excess fat, sugar or salt, that feature of the product is adverse to a child's health'.
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Commenting on the outcome, Kellogg UK managing director Chris Silcock said: “We brought this legal challenge because we believe the formula used to measure the nutritional value of food is wrong when it comes to breakfast cereals, and we believe it is right to stand up for what we believe in.
“We are therefore disappointed that the court upheld the Government’s approach to the nutritional assessment of cereals.”
No appeal
While disappointed with the judgment, Silcock respected the decision and the company did not intend to appeal.
“We still believe that it is important that cereals are measured in a way which reflects how most people eat them – with milk,” Silcock continued. “We also remain concerned at the way the Government introduced these regulations – which, in our view, was without proper Parliamentary scrutiny.
“By restricting the placement of items in supermarkets, people face less choice and potentially higher prices. That’s why, in the midst of a cost-of-living crisis, we would strongly urge the Government to rethink these regulations and put the consumer first.”
Katrina Anderson, food lawyer at Osborne Clarke, said this verdict effectively closed down the possibility for future challenges on the basis that the nutrient profiling model itself was problematic and sometimes produced results that seemed counterintuitive – such as cheeses and juices typically being classified as HFSS whereas a burger may not be.
“It also means that the Government will not be forced to allow Parliament to scrutinise the HFSS model either now or in the foreseeable future,” she added.
Focus on compliance
“In practice this means that most companies will focus on ensuring compliance with these rules and also the forthcoming advertising restrictions on HFSS as the legal avenues for challenge now appear to be largely exhausted.”
Healthy eating charity The Food Foundation welcomed the ruling. Executive director Anna Taylor said she was 'delighted that good sense prevailed' and that Kellogg lost on all counts. “We need food companies who are prepared to show leadership on helping to tackle childhood obesity, and not act as a dead weight on policy intervention.”
Commenting on what happens next, Taylor added: “It's time for businesses to show they are part of the solution - this means setting and reporting on targets for shifting sales of healthy and unhealthy food and supporting government policy intervention to create a level playing field so all businesses can behave more responsibly.
“We are working with investors to highlight the need for a legislative strategy to rein in the commercial incentives which undermine the nation’s health.”
