Kellogg has taken the government to court challenging the nutrient model used in the HFSS (high in fat, salt and sugar) products regulations that are set to take effect in October. More significantly, the cereal maker has also challenged legality of the way the regulations are introduced.
The company said it supports the government’s Obesity Strategy, but believes the formula used to measure the nutritional value of food is wrong when it comes to breakfast cereals.
“We believe the formula being used by the government to measure the nutritional value of breakfast cereals is wrong and not implemented legally. It measures cereals dry when they are almost always eaten with milk,” Chris Silcock, Kellogg’s UK managing director, said.
“All of this matters because, unless you take account of the nutritional elements added when cereal is eaten with milk, the full nutritional value of the mealis not measured.”
Kellogg added that a judge has accepted that the case has merit and agreed that it can proceed to the next stage, which is a hearing in court.
The company noted that the Nutrient Profiling Model (NPM) works like a virtual set of scales and calculates the nutritional value of a food by weighing up things like protein and fibre against things like salt and saturated fat.
Kellogg clarified that their concern lies with this formula and its application to breakfast cereals only as it scores cereals based on dry weight and does not take into account of the nutritional elements added when cereal is eaten with milk. In fact, 28.4 per cent of all milk consumed in the UK is with breakfast cereal, it added.
The company said it has tried on a number of occasions to have a discussion with the government on the issue.
“We’ve tried to have a reasonable conversation with the UK government over the past twelve months about making this change, but to no avail,” Silcock said. “So, we now find ourselves doing something which we really didn’t want to have to do which is to go to court to get the formula changed so that it reflects how people eat our food in real life.”
Kellogg further alleged that the way that the government is now proposing to use the NPM is for a purpose for which it was not intended.
“It was originally conceived in 2004/05 to determine whether certain products could be advertised on television pre-9pm. It is now being used in a very different way, and in a way for which it was never intended – to determine where things can bepositioned in a supermarket or the placement of advertising on things like YouTube or social media,” the company said in a statement.
Kellogg said its application for the judicial review was approved on three grounds, the argument around how the NPM value is calculated for breakfast cereal, plus two additional legal arguments which cover how the new regulations were written into law.
These argue that there is no legal basis in the Food Safety Act of 1990 for the enforcement regime introduced by the government in the regulations and that the parliament was not given the opportunity to properly scrutinise the NPM and its application because it is included in a technical guidance document and not in the actual legislation.
“We believe that it’s right that the parliament has the opportunity to properly assess the policy the government is proposing, which is why we also raised the two additional legal points in addition to the main argument,” the company said.
New rules will restrict the placement of HFSS food and drink in stores and promotion of those goods by retailers from October.
Products considered less healthy cannot be featured in key store locations, such as checkouts, entrances, aisle ends and their online equivalents.
Stores will also have to restrict volume price promotions such as "buy one get one free" or "3 for 2" offers on so-called HFSS products.
The Department of Health and Social Care (DHSC) said it could not comment on the Kellogg's case but defended the new rules.
"Obesity costs the NHS more than £6 billion a year and is the second biggest cause of cancer in the UK," said a DHSC spokesperson.
"Breakfast cereals contribute 7 per cent to the average daily free sugar intakes of children. Restricting the promotion and advertising of less healthy foods is an important part of the cross-government strategy to halve childhood obesity by 2030, prevent harmful diseases and improve healthy life expectancy."
