Kellogg’s legal challenge to the government’s looming clampdown on high fat, salt and sugar promotions threatened to derail the entire obesity programme. 

So the High Court’s comprehensive rejection of Kellogg’s various argument today signals not just the end of the road for the cereal giant’s hopes of halting the clampdown, but also quashes hopes among other leading manufacturers that they could launch challenges of their own on similar grounds. 

Kellogg’s had challenged the clampdown, which is due to see HFSS products banned from prominent locations in stores from October, on three grounds.

The argument that gained most attention was probably its claim that cereals should be exempt because they are usually consumed with milk, adding to the nutritional value of a portion.

But it was the other two that had potential implications beyond cereal. The company argued the clampdown should be declared ‘ultra vires’ – or ‘beyond the powers’ of the Food Safety Act of 1990, which does not include a legal basis for local authorities to fine stores for breaches of HFSS regulations.

And its third argument centred on the controversial nutrient profiling model (NPM) used to assess whether products should be included in the clampdown.

Kellogg’s claimed that, as the NPM was created in 2004 as the basis for Ofcom’s policing of advertising aimed at children, it had never been properly scrutinised by parliament for the purposes of the HFSS clampdown and its powers should be quashed.

All three arguments were rejected in the ruling handed down today following a High Court Judicial review, meaning the new HFSS rules are set to come into force this year as planned.

More than that, the court’s comments in the 60-page ruling “also have implications for challenges more generally”, says Katrina Anderson, senior associate at law firm Osborne Clarke.

The ruling makes abundantly clear that the court sees the various reviews and consultations that have been conducted during development of the HFSS plans, including the NPM, as sufficient. That was the time to challenge the plans, not now.

Among other things it “effectively closes down the possibility for future challenges on the basis that the nutrient profiling model itself is problematic and sometimes produces results that seem counterintuitive, such as cheeses and juices typically being classified as HFSS whereas a burger may not be” says Anderson.

“It also means that the government will not be forced to allow parliament to scrutinise the HFSS model either now or in the foreseeable future.”

With regard to added milk, Kellogg’s argued cereals should be treated the same way as products mixed with liquid before consumption, such as custard powder and dried pasta, which are assessed based on their nutrient profile once reconstituted according to the manufacturer’s instructions.

“However, as the final judgement stated, Kellogg’s had not responded directly to the 2019 consultation about the new regulations, nor raised this point at the time,” notes a spokeswoman for the Children’s Food Campaign. The group has pulled no punches in its condemnation of the cereal maker, accusing it of “wasting huge amounts of time and money with unhealthy, distasteful litigation”. 

Campaign co-ordinator Barbara Crowther says: “We’re glad that Justice Linden has thoroughly reviewed the robustness of the new legislation and dismissed Kellogg’s case on all grounds. We hope that will be an end to this matter, and Kellogg’s will join other companies in now moving forward constructively to put healthier products in the spotlight for us all.”

Kellogg’s maintains it makes little sense that consumers “will be able to buy other products, like doughnuts and chocolate spreads, on promotion – but not many types of breakfast cereals” under the forthcoming rules.

Leading industry figures also still back the challenge as “worthwhile”. The pressure has helped stave off even more “extreme and ill-judged anti-obesity measures” from government, says one senior source.

But with Kellogg’s, despite its disappointment, saying it respects the decision and does not intend to appeal, an end to the matter is what this appears to be.

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