Jul 6th, 2022
4 mins
Earlier in the year Kellogg’s took legal action against the governments ban on HFSS promotions. However, it was confirmed early in July that Kellogg’s legal challenge had been rejected by the High Court.
Kellogg’s argued that cereals shouldn’t be exempt from prominent in store displays and volume sales because they are usually consumed with milk, which adds to the nutritional value of a portion. They claimed that the cereals should be treated the same way as products mixed with liquid before consumption, such as custard powder and dried pasta, which are based on their nutrient profile once reconstituted according to the manufacturer’s instructions.
Another issue they raised, which could have derailed the entire HFSS clampdown if successful, was it should be declared “ultra vires” or “beyond the powers” of the Food Safety Act of 1990. They argued a further act of parliament was required to give local authorities powers to fine stores for breaches of HFSS regulations.
Finally, their third point was around the controversial nutritent profiling model, used to assess whether products should be included in the clampdown. As the NPM was created in 2004 as the basis for Ofcom’s policing of advertising aimed at children, it was never properly scrutinised by parliament for the purposes of the HFSS clampdown.
All three grounds for the challenge were rejected following a High Court judicial review.
“Breakfast cereals may have liquids added to them or be mixed with other products before they are eaten, but this is not necessarily the case,” said Mr Justice Linden on Kellogg’s milk argument.
“Many of them can be eaten in dry form. They do not come with instructions for preparation which say that they should be consumed with milk, although I accept that their packaging and messaging will often depict or refer to milk with the cereal and some manufacturers include information as to nutritional values in the event that they are consumed with a specified quantity of milk.
“The fact that manufacturers provide information as to nutritional values, rather than manufacturer’s instructions, is not just a reflection of the different nature of breakfast cereals; it also illustrates a practical difference in terms of the availability of an effective standardised approach.”
