In R. (on the application of Kellogg Marketing and Sales Co (UK) Ltd) v Secretary of State for Health and Social Care  EWHC 1710 (Admin) the High Court dismissed all four grounds of a challenge brought by Kellogg to the Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368) (the “Regulations”).
- The courts will take a deferential approach to policy decisions involving weighing up competing interests, particularly in areas such as public health.
- There is no rule that prohibits the incorporation of extraneous documents into a statutory instrument by reference, provided this is permitted under the enabling legal provision.
The Regulations (due to come into force on 1 October 2022) introduce restrictions on the promotion of food classified as high in fat, sugar or salt (“HFSS“) and therefore considered “less healthy”, as part of the Government’s strategy to tackle childhood obesity. The assessment of whether a particular food is “less healthy” depends on the score given under the Food Standards Agency’s existing Nutrient Profiling Model (“NPM“) which is incorporated into the Regulations by reference along with the associated technical guidance (together the “NPTG“).
Regulation 10 provides that an improvement notice may be issued by an enforcement authority where it has reasonable grounds for believing that a food proprietor is failing to comply with the Regulations. In making this provision, the Defendant relied on the authorisation contained within the Food Safety Act 1990 (the “FSA“), specifically Section 10 FSA which concerns the regulations of food preparation processes and hygiene practices (or as extended by Section 48(1) FSA “matters similar”). Section 16 FSA also enables further provisions to be made by regulation in the interest of food safety and consumer protection.
Following the classification of a number of Kellogg breakfast cereals as “less healthy” the Claimants sought to challenge the Regulations on four grounds:
Ground 1: Regulation 10 is ultra vires as Section 10 FSA does not permit the issue of improvement notices for the subject matters concerned in the Regulations.
Ground 2: The incorporation of the NPTG by reference, as opposed to by inclusion in the statutory instrument itself, is ultra vires.
Ground 3: The Defendant failed to adequately consider the appropriateness of assessing cereal as sold (i.e. without milk) rather than as consumed (i.e. with milk), and this failure amounts to irrationality.
Ground 4: The assessment of cereal without milk disproportionately infringes the Claimants’ right to peaceful enjoyment of its possessions contrary to Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1 ECHR“).
The Claimants contended that Section 10 FSA does not confer a power to enact regulations which expand the scope for issuing improvement notices, and that Regulation 10 therefore has the effect of amending primary legislation.
The court dismissed the argument that the Defendant had sought to amend primary legislation on account of the fact that Regulation 10 is a free-standing mechanism which “enlarges” the power to issue improvement notices in a way that is consistent with the aims of the FSA rather than altering Sections 10 and 11 FSA.
The court then addressed the question of whether the relevant FSA provisions confer a power on the Defendant to enact Regulation 10. After considering the relevant statutory provisions in detail, Linden J did not accept that there was any real doubt as to the existence of the power.
As conceded by the Claimants, there is no rule which forbids the incorporation by a statutory instrument of rules set out in an extraneous document. Whether or not this is permitted in a given case therefore depends on the construction of the enabling provision. The Claimants referred to Section 16 FSA which permits the Defendant to make provisions “by regulations [emphasis added]” to suggest that the reliance on the NPTG (which is not contained within the Regulations directly) was ultra vires. The court rejected the notion that this formulation created a requirement for the whole provision to be contained in one document and suggested that “it would be surprising if the position were otherwise” given the detailed scientific analysis which, though important, need not be spelt out in the statutory instrument.
It is worth noting here that the court also reiterated that the incorporated document must be in existence at the time the statutory instrument is laid before Parliament, and that “the effect of it becoming law is that it cannot then be changed without following whatever legislative process is required to amend or replace the statutory instrument itself”.
Grounds 3A and 3B both centred on what the Claimants refer to as “the milk issue“. The Claimants argued that the Defendant was irrational in failing to conduct an assessment of the appropriateness of determining the nutritional profile of breakfast cereals without taking into account the fact that they are normally consumed with milk. Had the nutritional value of the milk been considered alongside that of the cereal, fewer products would have become subject to the restrictions imposed by the Regulations.
The court accepted that the Defendant had not been asked in any Ministerial submission to reassess the issues ventilated in formulating the existing NPM nor the process by which they were decided and the question therefore was whether the Defendant was bound to consider these matters or make further inquiries into them (as per the Tameside principle). The court concluded he was not, reasoning that it was open to him to make further inquiries as necessary (indeed he did so) and ultimately he “evidently considered that he was sufficiently well informed“.
Furthermore, the court highlighted that the relevant matters had been carefully considered in the course of the development and review of the NPM by various experts over a period of years. There had then been ample opportunity to raise the point again in a 2019 public consultation, in response to which the Claimants did not raise these issues. The court held that, “the approach stated in the NPM had been applied for more than a decade without controversy” and simply because the Claimants sought to re-open decisions taken more than a decade earlier and re-taken in 2021 “at the eleventh hour” did not render those decisions irrational or mean it would be irrational for the Defendant to proceed without making further inquiries.
The court acknowledged that there was no dispute that A1P1 was engaged and that the question was therefore whether the Defendant could justify the relevant infringements, with the dispute between the parties focusing on proportionality. The court noted that although the Defendant did not personally consider the issues now raised by the Claimants under Grounds 3A and 3B, these issues were considered at length and in detail by various experts and expert bodies, including state bodies, in the period 2004-2009. The court found that the Defendant was clearly aware of the relevant considerations, and that he “evidently considered that the public interest and considerations of public health outweighed the detrimental impact on business of the measures“.
The court went on to conduct a broad analysis in which it noted that “the addition of milk does not alter the nutritional profile of the products themselves” and that the move to an “as consumed” approach would reduce the effectiveness of the NPM by introducing multiple points of uncertainty in the assessment.
The court concluded that the Defendant’s approach was both proportionate and rational.
In this judgment the court took a robust approach to the various grounds of challenge brought by the Claimants, which is to be expected in an area of social policy such as health. In relation to Ground 3 in particular, the court emphasised that “[t]his is a case in which a significant degree of deference should be accorded to the decision marker(s)“. Despite this deferential approach the courts conducted an analysis of the practical implications of the “milk issue” from various perspectives, but the court was ultimately dismissive of the notion that the NPM as currently applied would cause unfairness to the Claimants or arbitrariness in the effects on their business.
The court’s comments in relation to ground 3A demonstrate the importance of engaging early in the regulatory process and raising key legal arguments before the decision maker takes a final decision. A failure to do so is likely to weaken the ability to challenge the final decision.