Legal challenge to HFSS rules fails

8th September 2022

On 4 July 2022, the High Court dismissed Kellogg’s judicial review challenge in regards to aspects of the Food (Promotion and Placement) (England) Regulations 2021 (SI 2021/1368) (the Regulations). The Regulations ban the promotion of foods which are high in fat, salt and sugar (HFSS) through multi-buys and their placement in prominent locations in stores.

How did Kellogg’s challenge the HFSS rules?

Kellogg’s challenged the Regulations on three grounds:

• First, that cereals should be exempt because they are usually eaten with milk which adds to the nutritional value per portion.
• Second, the Regulations were beyond the powers of the Food Safety Act 1990.
• Third, that the nutrient profiling model used to assess whether products should be classified as HFSS had never been scrutinised by Parliament for the purposes of the Regulations.

What did the court say?

The court rejected all of Kellogg’s arguments. The court’s position on the key issue of the merits of the nutrient profiling model also reduce the chance of future challenges. The court made it clear that it considered it perfectly acceptable that Parliament did not review the HFSS model itself. The ruling also made it clear that the shortcomings of the HFSS model had been considered as part of previous reviews and consultations. The food and drink industry had been given the opportunity to raise any concerns about the use of the model and it was too late to be challenging it now that the Regulations had come into force.

What does this mean for you?

All of this can be taken to mean that future challenges on the basis of the shortcomings of the model are unlikely to succeed and it is likely that Government will continue to use the model as the basis for further legislation in relation to childhood obesity, and with reasonable confidence. Kellogg’s have already stated that they do not intend to pursue the matter further.

Therefore, although several parts of the Regulations have been delayed until 2023, the placements rules (in store and online) relating to HFSS foods will come into force on 1 October 2022.