Kellogg’s legal challenge highlights ambiguity in HFSS regulations

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Bakery

A scone in a bakery display would be out of scope of HFSS regulations if sold loose, but in scope if it’s already in a bag when put on sale

In October, the government’s latest measures to fight obesity – the restrictions on online and offline promotions of HFSS foods – come into force. We all support the idea of a healthier nation. We all agree that manufacturers, retailers and government as well as the public have important but differing roles to play. These things are not controversial.

However, there appears to be an arbitrary approach to what is and is not in scope of the regulations and associated guidance, resulting in the spirit and letter of the measures often leading to two fundamentally different outcomes. That is one of the reasons Kellogg’s decided to launch a judicial review, heard in the courts last week.

Constructive ambiguity can be a useful tool for politicians giving answers and solutions to an irretractable, and usually political, problem. But ambiguity is seldom good for regulation.

Businesses may not like a law, but provided they can understand it and what is necessary to comply, they can action and implement it. However, the new HFSS regulations have created more questions for those who must abide by them.

Contrary to reporting, not all food is regulated. Only ‘specified’ food in one of the categories in the schedule is, and then only if it meets HFSS thresholds and even then only if that food is prepacked.

That has significant implications and consequences. So, for instance, it means that if the store sells loose, prepacked food for direct sale or packed at the customer’s request, it is not in scope of promotional or local restrictions – but if it sells exactly the same product in packaging, it is regulated.

Nutrition is unimportant in that context, rather it is packaging that’s key. So a scone in a bakery display in a grocery store is out of scope if sold loose or will be put in a bag by the grocery store, but in scope if it’s already in a bag when put on sale. Same product, same nutritional profile, totally different outcomes.

One of Kellogg’s issues is that cereal is commonly paired and eaten with milk and seldom consumed alone, so assessing it alone is not a fair reflection of its nutritional content. We can only assume the distinction being drawn in the law/guidance is that the product is assessed as it is on the shelf rather than at point of consumption.

So let’s think about the location provisions. On one quick reading, and with no detailed thought about the practical, they make sense. But, as you explore the rules you realise that many, if not all, of the key concepts are not defined, and that leaves confusion on what specific area is being talked about. The rules may work better if you have a simple single box store just selling food, but add any complexity, such as multiple sales areas for different types of products, and suddenly things become confusing.

Sadly, we foresee this will be an area where the lack of clarity will lead to enforcement action and ultimately litigation, and that is really not in anyone’s interest. Consumers and businesses alike need clear, common-sense rules that give a consistent message. Only by achieving this will the regulations ensure a level playing field for food businesses and support consumers to make truly informed food choices.