As part of the fight to tackle obesity and improve the health of the nation, the UK Government has introduced restrictions on the promotion of certain foods (which are HFSS i.e. high in fat, salt and sugar) including certain cereal products. In particular, some cereals with high-sugar levels will be banned from being prominently displayed on supermarket shelves. However, the new rules have been challenged by the major cereal manufacturer, Kellogg’s, who claims that the nutritional value is incorrectly measured. The legal action will most likely provide a strong precedent going forward with many other cereal brands watching closely to see what steps they may need to take.
The restrictions introduced by the UK government will take effect in England from 1 October 2022 with the rest of the UK being unaffected at this time. The restrictions include, amongst other things:
- ban on television advertising of less healthy products before 9pm;
- restrictions on the display in shops of less healthy products; and
- ban on “buy one get one free” offers on less healthy products.
The Department of Health and Social Care suggests that this could play a key role in reducing child obesity, stating that: “Breakfast cereals contribute 7 per cent to the average daily free sugar intakes of children” and “restricting the promotion and advertising of less healthy foods is an important part of the cross-government strategy to halve childhood obesity by 2030.”
The policy was criticised when it was first drafted last year with Ministers questioning the health benefits of such restrictions. Additionally, many Ministers suggested that the marginal health benefits did not warrant the restrictions which were being placed on companies. Indeed, since the passing of the new rules, other companies have raised similar arguments in addition to Kellogg’s who raised its legal challenge in the English High Court at the end of April.
Kellogg’s legal challenge
Kellogg’s UK is challenging the UK government’s policy by claiming that there has been an unfair penalisation of certain products including cereals. The company is the owner of several large cereal brands including Coco Pops, Kellogg’s Corn Flakes, All-Bran, Frosties, and Rice Krispies.
Kellogg’s UK seeks to argue that the method in which the nutritional value is calculated is incorrect. The UK government when introducing the policy used the nutritional value of the dried goods but Kellogg’s claims that this is unfair as it does not take into account the fact that 92% of people eat cereal with milk or yoghurt. It is claimed that adding milk or yoghurt makes a substantial difference as the inclusion changes the nutritional profile of a cereal resulting in products like Kellogg’s cereals not being classified as a high sugar food.
The argument raised by Kellogg’s UK is robust (although it remains to be seen whether the argument will be successful) and it could result in other food and drink providers claiming their products are misclassified as ‘less healthy products’ on the basis that they are primarily eaten in conjunction with another product.
A further update will be issued once a decision is published on Kellogg’s UK legal challenge before the English High Court.
This article was co-written by Haris Saleem, Trainee Solicitor.