Kellogg Marketing And Sales Company (UK) Ltd & Anor, R (On the Application Of) v Secretary of State for Health And Social Care

Factual and Procedural Background

The Food (Promotion and Placement) (England) Regulations 2021 ("the 2021 Regulations") were enacted as part of the Government's strategy to tackle childhood obesity by restricting the promotion of foods classified as high in fat, sugar or salt ("HFSS") in large retail outlets and online. Breakfast cereals were included as a category of "specified food" subject to these restrictions, with classification based on the Food Standards Agency's Nutrient Profiling Model ("NPM") and its associated Nutrient Profiling Technical Guidance ("NPTG"). The Claimants ("Kellogg") are manufacturers of breakfast cereals, and they challenged the 2021 Regulations on multiple grounds, primarily objecting to the assessment of breakfast cereals as HFSS without accounting for the fact that they are typically consumed with milk, which they argue would alter their nutritional profile.

The procedural history includes the laying of the 2021 Regulations before Parliament in draft on 21 July 2021, approval by both Houses in November 2021, and the Regulations coming into effect for location promotions on 1 October 2022. The Claimants initiated judicial review proceedings challenging the vires and rationality of the Regulations, with the hearing held on 27-28 April 2022 and judgment handed down on 4 July 2022 by Mr Justice Linden.

Legal Issues Presented

1. Whether regulation 10 of the 2021 Regulations, providing for improvement notices by food authorities, is ultra vires the enabling powers under the Food Safety Act 1990 and the Regulatory Enforcement and Sanctions Act 2008.
2. Whether the incorporation by reference of the Nutrient Profiling Technical Guidance ("NPTG") into the 2021 Regulations contravenes statutory requirements for Parliamentary scrutiny and the rule of law.
3. Whether the Defendant's failure to consider or inquire into the appropriateness of assessing breakfast cereals without accounting for typical consumption with milk constitutes irrationality or a breach of the duty of reasonable inquiry (Ground 3A).
4. Whether assessing breakfast cereals on a dry weight basis without milk is disproportionate, irrational, and infringes the Claimants' rights under Article 1 of Protocol 1 and Article 10 of the European Convention on Human Rights (Ground 3B).

Arguments of the Parties

Appellant's Arguments

• Regulation 10 is ultra vires because the power to issue improvement notices under the Food Safety Act 1990 is limited to regulations concerning food safety and hygiene, not consumer protection measures such as promotion restrictions.
• The incorporation by reference of the NPTG is unlawful as all determinative rules should be contained within the statutory instrument laid before Parliament, ensuring proper Parliamentary scrutiny and transparency.
• The Defendant failed to consider relevant material facts and did not discharge the duty of reasonable inquiry regarding the assessment of breakfast cereals without milk, rendering the decision irrational.
• Assessing breakfast cereals on a dry weight basis without milk is disproportionate and irrational, lacking a rational connection to the aim of reducing childhood obesity, and infringes the Claimants' property and expression rights under the ECHR.
• A less intrusive and more rational approach would be to assess breakfast cereals with milk, or to apply a fixed ratio of cereal to milk, analogous to treatment of reconstituted foods.

Respondent's Arguments

• Regulation 10 is validly enacted pursuant to broad powers under sections 16 and 26 of the Food Safety Act 1990, and section 62 of the Regulatory Enforcement and Sanctions Act 2008, permitting appropriate enforcement methods including improvement notices for the 2021 Regulations.
• Incorporation by reference of the NPTG is lawful as the NPTG is a fixed, existing document referenced in the Regulations and does not constitute unlawful sub-delegation; this approach is consistent with prior authorities and Parliamentary practice.
• The issues regarding assessment of breakfast cereals without milk were considered in detail during the development and review of the NPM between 2004 and 2009, including public consultations and expert workshops, and were resolved against the "as consumed" approach.
• The Defendant was aware of the approach and the relevant material at the time of decision-making and was not required to reopen settled expert judgments or conduct further inquiries absent new material.
• The assessment on a dry weight basis is rationally connected to the legitimate aim of reducing childhood obesity, providing a simple, transparent, and workable method for differentiating foods by nutritional content on a like-for-like basis.
• The approach is proportionate given the significant public health benefits, the availability of rights of appeal and opportunities for reformulation by manufacturers, and the broad margin of appreciation afforded to public health regulators.
• The distinction between breakfast cereals and reconstituted foods is rational and based on the presence of manufacturer preparation instructions and the nature of the products.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory construction exercise to determine the vires of regulation 10 of the 2021 Regulations. It distinguished the present case from precedent involving Henry VIII powers, concluding that regulation 10 does not purport to amend section 10 of the Food Safety Act 1990 but rather enacts a freestanding enforcement mechanism consistent with the enabling provisions under sections 16 and 26 of the Act and the Regulatory Enforcement and Sanctions Act 2008. The court found that Parliament intended to permit regulations to include enforcement measures such as improvement notices, including criminal sanctions, and that such powers were properly conferred.

Regarding the incorporation by reference of the Nutrient Profiling Technical Guidance (NPTG), the court accepted established principles that incorporation is permissible provided the referenced document is fixed, existing, and not subject to sub-delegation. It found that the NPTG was appropriately incorporated, and that the statutory instrument laying the 2021 Regulations before Parliament was the document by which the power to make regulations was exercised, satisfying statutory requirements and constitutional principles of Parliamentary scrutiny and legal certainty.

On the alleged failure to consider relevant matters (Ground 3A), the court found that the issues raised by the Claimants had been comprehensively considered and resolved during the development and review of the NPM between 2004 and 2009, including public consultations and expert workshops. The Defendant was aware of the approach and had access to relevant materials. The court held that the Defendant was not obliged to revisit settled expert judgments or make further inquiries absent new material, and that the timing and context of the Claimants' late complaints did not render the decision irrational.

On proportionality and rationality (Ground 3B), the court recognized the legitimate public health aim of reducing childhood obesity and accepted that the 2021 Regulations, including the use of the NPM to assess foods on a dry weight basis, were rationally connected to that aim. The court accorded a broad margin of appreciation to the Defendant, given the public health context and the expertise involved. It found that the NPM provides a simple, transparent, and workable method to differentiate foods by nutritional content on a like-for-like basis, and that attempts to assess breakfast cereals in combination with milk would introduce complexity, uncertainty, and undermine the policy objectives. The court rejected arguments that the approach disproportionately infringed the Claimants' rights or lacked less intrusive alternatives. It also found the distinction between breakfast cereals and reconstituted foods rational and justified.

Overall, the court concluded that the 2021 Regulations were within the Defendant's powers, properly enacted, and that the challenged aspects of the Regulations were rational, proportionate, and lawful.

Holding and Implications

The court dismissed the Claimants' challenge and upheld the validity of the Food (Promotion and Placement) (England) Regulations 2021.

The direct effect of this decision is that the enforcement provisions, including improvement notices under regulation 10, are lawful and may be applied, and that the use of the Nutrient Profiling Technical Guidance incorporated by reference is valid. The assessment of breakfast cereals as HFSS on a dry weight basis without accounting for typical consumption with milk is lawful, rational, and proportionate. The Claimants must comply with the 2021 Regulations as enacted.

This decision does not establish new precedent beyond confirming the application of established principles of statutory interpretation, delegated legislation, and judicial review to the specific facts of this case. It confirms the broad discretion afforded to public health regulators in addressing childhood obesity through food promotion restrictions.