In R (Kellogg Marketing and Sales Company (UK) Limited) v Department of Health and Social Care, the Kellogg Company (Kellogg’s) sought to challenge the lawfulness of the Food (Promotions and Placement) (England) Regulations 2021. These Regulations, which are part of the government strategy to tackle childhood obesity, restrict promotions of specified ‘less healthy’ foods as determined in guidelines issued by government in 2011, based upon the Nutrition Profiling Model developed by the Food Standards Agency in 2004-5. Most of Kellogg’s breakfast cereals are classified as less healthy on this basis.
The Regulations restrict the capacity of manufacturers to offer volume price reductions, place restrictions on placement of products in shops to minimise impulse buying, and limit online promotions. They will therefore affect profitability: impact assessments conducted in conjunction with the proposed Regulations estimated that affected manufacturers could suffer losses of around £5.5 billion over a 25 year period. This compares with health benefits of £77 billion over the same period (paragraph 176 of case).
There were four grounds of challenge raised by Kellogg’s, all of which were comprehensively dismissed by Mr Justice Linden in the High Court. The first two of these were based on the argument that the 2021 Regulations went beyond the powers granted by the governing legislation, the Food Safety Act 1990, and that accordingly this statute could not be used as the basis on which to regulate promotions of products containing high levels of fat, sugar or salt. These arguments turned on quite complex technical legal questions concerning the relationship between primary and secondary legislation. The judge resolved these in the government’s favour.
The other two arguments were said by the judge ‘to directly raise Kellogg’s commercial concerns’ (paragraph 6).
It was claimed that that there had been an unlawful failure to take account of the fact that cereals were generally consumed with milk, which Kellogg’s had contended added to their nutritional value. However, the High Court observed that the manufacturer had had numerous opportunities to raise this issue, notably during the initial consultation period on the Regulations in 2019, but that it had failed to do so. Thus the government could not be held to have acted unlawfully by disregarding the point when making the Regulations. The judge considered that Kellogg’s argument that its cereals should not be considered to be less healthy because they were consumed with milk to be ‘surprising’ (paragraph 224).
The final argument was that the Regulations had a disproportionate impact upon the manufacturer’s rights to peaceful enjoyment of possessions and/or freedom of expression under Protocol 1 Article 1 and Article 10 respectively of the European Convention on Human Rights. Although the court accepted that these rights were, in principle, engaged by the Regulations, it was clear that there were strong public health considerations in favour of the measures. The court held that these served to justify any potential infringements of rights. The court also noted that this was ‘a case where the expert judgment of the public health, nutrition and other experts… as well as the judgment of the [Department of Health and Social Care] should be accorded respect by the court’ (paragraph 214).
A nuanced judicial approach
The stance taken by the High Court might seem surprising to those who are inclined to view the English legal system as tending to favour commercial or economic interests over more diffuse, collective goals such as protection or promotion of population health. However, it is important to comprehend that the process of judicial review, including review under the Human Rights Act 1998 (which gives domestic legal effect to the European Convention on Human Rights) is purposefully designed to balance individual or corporate interests against broader public goals (Coggon, Syrett and Viens, 2017).
Moreover, although it is far from uncommon for government departments to lose judicial review cases, the courts are conscious of the inherent limitations of their constitutional status, in particular, that they lack democratic legitimacy. This frequently results in judicial expressions of ‘deference’ to the decisions of elected politicians, as was apparent in this case (paragraph 213).
Litigation as a corporate strategy
The use or threat of litigation (Mialon et al 2022), sits within a well-documented set of strategies deployed by corporations to oppose regulation (Savell et al 2014), including lobbying of decision-makers and participation in health policy consultations (Lauber et al 2021), and manipulating or misrepresenting the scientific evidence (Petticrew et al 2018).
Kellogg’s chief motivation will undoubtedly have been to protect sales, with the removal of ‘location promotions’ resulting in a loss of £5 million of profits annually (paragraph 233 of case; O’Connell 2022). Yet, it is likely that the company knew that it had a slim chance of winning the legal challenge, given the inherent weakness of the arguments; moreover, there was a high risk of reputational damage (O’Connell 2022). So, what might have been its broader motivations for engaging in litigation?
It could be argued that an aim of the challenge was to attempt to publicly discredit health organisations and government by questioning their legitimacy as decision makers and the strength of their own arguments (Knai et al 2021). Following the ruling, statements by Kellogg’s across the media attempted to do just that. The company questioned both the scientific rigour underpinning the regulation and its economic consequences, stating that “we believe the formula used to measure the nutritional value of food is wrong” (Just Food Magazine, 4.07.2022) and “by restricting the placement of items in supermarkets, people face less choice and potentially higher prices” (Financial Times, 4.07.2022). It also criticized policy process, stating that “we also remain concerned at the way the Government introduced these regulations – which, in our view, was without proper Parliamentary scrutiny” (Reuters, 4.07.2022).
Kellogg’s may also be banking on the legal challenge resulting in ‘regulatory chill’ to benefit themselves and the wider food (and other) industries. This can refer to abandonment, inertia or delays in policy processes (Hawkins & McCambridge 2021) and is manifested in various ways. For example: a chilling or dampening effect on a specific measure once government is aware of existing threat to the regulation (referred to as ‘specific response chill’ (Schram et al 2018) or ‘threat chill’ (Tienhaara 2018)); acknowledgment of past legal challenges (such as Kellogg’s), resulting in the slowing down of new policy development processes (Hawkins & McCambridge 2021) (referred to as ‘anticipatory chill’ (Schram et al 2018)); the abandonment or weakening of proposed regulation to avoid future disputes based around past challenges to similar regulation, such as Kellogg’s (‘precedential chill’ (Schram et al 2018)); and the deliberate instilling of apprehension in other countries trying to implement similar regulation (‘cross-border chill’ (Tienhaara 2018)).
A valuable cautionary tale
Purely in terms of its result, we may see the Kellogg’s case as a victory for the government and a vindication of its policies on population diet and food-related health, including childhood obesity. A ruling in favour of Kellogg’s would have had wide-ranging implications, affecting more than just the promotions legislation, and challenging the use of the Nutrient Profiling Model in a range of nutritional regulations.
The company has indicated that it will not appeal the High Court ruling, and thus the measures are expected to come into force on October 1, 2022, as planned.
However, the case also helps to deepen our understanding of corporate intent beyond the immediate protection of business interests, and serves as further proof of the similarities in strategies deployed by all unhealthy commodity industries (Knai et al 2021; Brownell & Warner 2009). As summarised by Robert Proctor in his analysis of tobacco industry tactics, "their philosophy is opportunistic, and always subordinate to the goal of selling cigarettes and winning lawsuits, usually via stalling tactics known in the business as ‘sand in the gears’" (Proctor & Schiebinger 2008).
The public health community would do well to regard the Kellogg’s case as a valuable cautionary tale.
Professor Keith Syrett | University of Bristol profile
Professor Cécile Knai | London School of Hygiene and Tropical Medicine profile