Kellogg’s court defeat: why do major producers refuse to reformulate?

The health disparities white paper will be a hugely important moment in our national history. Expected before the summer break, it will present an opportunity for the government to address the painful health inequalities that were so plain in the pandemic.

In the face of a recession, there is a temptation for ministers to tell officials to lay off measures said to threaten jobs or hit the cost of living – claims that should be treated with suspicion, but nevertheless have traction in these difficult times.

Instead of enacting mandates and legal remedies, it is natural for government to consider arguments for collaboration with food businesses and industry-led initiatives.

But before any minister drops any of the commitments in the obesity strategy, they should read the judge’s summary in the case of Kellogg’s vs the Secretary of State for Health and Social Care, a remarkable intervention from the benches.

The case focused on whether a sugar-test on a bowl of, say, Frosties should include any milk or yoghurt. Since lots of people have milk with their Frosties, maybe they had a point? Or maybe the amount of sugar in the bowl is unchanged by the addition of milk? It is an arcane point with significant repercussions.

So let’s be clear what Kellogg’s was trying to do here. Acting as an icebreaker for the junk food industry, as it often does, Kellogg’s sought to blow out the entire junk food assessment framework.

Specifically, this was a judicial review of the Food (Promotion and Placement) Regulations 2021. These regulations are the cornerstone of the government’s strategy to tackle childhood obesity, by creating the framework for deciding which foods are harmful or not. Undermining the framework means regulation of junk food becomes virtually impossible without endless legal cases. It’s a classic sledging tactic.

This comes at a time when the government’s National Child Measurement Programme shows that in 2020/2021, 25.5% of 10 to 11-year-olds were obese.

Kellogg’s tried every trick in the book, including appeals to human rights law – a desperate measure. The judge blew them out of the water in an eviscerating riposte, the bluntest judgement I have ever read.

Most interesting was the judge’s response to Kellogg’s evidence regarding its anticipated loss of profit. Judge Linden observed “the irony [of that evidence] was… that the adverse impact on Kellogg… directly correlates with what the government is trying to achieve”. He added that Kellogg’s had not explained why it was “unable or unwilling” to reformulate its products to remove them from the new restrictions.

And this is the key point.

The junk food industry rejects the idea of a junk food cycle in which children become addicted to sugars, fats and salts. Yet they cannot explain why they are “unable or unwilling” to reformulate their products to remove these harmful, addictive ingredients.

This is not the behaviour of a trusted partner. This is indicative of an industry running a cynical strategy of “deny, delay and defend” to wriggle out of its responsibilities to our young people. It is an industry that has lost the energy and creativity to put healthy meals on the table. It is an industry that needs to think again.

This is cause for serious concern for any government thinking about putting industry-led initiatives at the centre of its plans to tackle obesity. Ministers should read this carefully before the publication of the health disparities white paper.