Is breakfast cereal junk food? That’s what the High Court decided recently when the cereal manufacturer, Kellogg’s, failed in its legal challenge against the government’s new food strategy.


The proposed regulations by the Department for Health and Social Care would mean that foods which are high in fat, salt and sugar would be banned from promotional offers such as buy one get one free and extra free. The measures are set to come in in October 2022.


Kellogg’s claimed that because their cereal is eaten with milk, this means that they should not come under the category of junk food. This was however dismissed on the basis that the addition of milk would not affect the fact that the cereal was already high in sugar.


Keep reading to learn more about this case.


The government’s anti-obesity strategy


As mentioned before, foods considered to be high in fat, salt, and sugar (HFSS) will be prevented from being able to take part in promotional offers from October 2022. These foods will also be unable to be displayed in high profile locations such as checkouts, shop entrances and aisle ends.


Kellogg’s contention with the regulations is driven by the fact that 54.7% of its products are classed as ‘less healthy’, a term the government uses to define these HFSS foods. Furthermore, 30% of Kellogg’s HFSS foods are sold through location promotions, which will cost the company £5m in profit according to the manufacturer.


The measures have caused a debate in the UK, with some finding it perverse to introduce regulations banning promotion on food during a cost-of-living crisis and at a time when millions of Britons also use food banks.


Nevertheless, there was also a sharp rise in childhood obesity during the Covid pandemic, with 14.4% of 4- and 5-year-olds now classed as obese compared to 9.9% in 2019/2020. In fact, while the measures were originally intended to be introduced in May, they were delayed until October over concerns by Boris Johnson over the cost-of-living crisis.


High Court dismisses Kellogg’s argument 


Kellogg’s main argument was that unlike other HFSS foods, cereal is nearly always eaten with milk. Tom Hickman, QC, and counsel for Kellogg, made the case that because cereals are ‘overwhelmingly consumed with milk’, the overall proportion of sugar and salt is slashed and that therefore they shouldn’t be classed as junk food.


While Kellogg’s products like Coco Pops, Frosties, and Crunchy Nut are being measured without the inclusion of milk, other products such as hot chocolate or soup are being assessed with the inclusion of milk or water. Kellogg’s claim that their breakfast cereals are a ‘dehydrated food’, which are intended to absorb liquid which subsequently transforms its shape and texture. However, unlike tins of hot chocolate or soup you find in the supermarket, cereal can be eaten dry. This is certainly a hole in the argument made by Kellogg’s.


Kellogg’s also criticised the way the regulations had been developed, stating that they did not receive proper parliamentary scrutiny. Justice Linden dismissed this idea, pointing out that none of the breakfast cereal manufacturers raised the fact that they didn’t agree with the cereals being judged ‘as sold’ rather than ‘as consumed’, the latter of which formed the basis of Kellogg’s argument.


Following the outcome of the case, Kellogg’s have stated publicly that they will not be appealing against the verdict which the High Court came to. Kellogg’s also warned that this could subsequently result in higher prices for consumers once the regulations come in due to the lost profits which are expected to follow.


Our comments


We think it’s fair to say that the conclusion reached by the High Court in this case is one which the majority of people wouldn’t have too many arguments against. While they may not necessarily agree with the regulations themselves, Kellogg’s didn’t have a particularly strong case in arguing that because of the milk which is generally added to cereal, this means that its products should somehow be excluded from being classed as high in sugar, when they are in fact high in sugar.


However, there may be a happy outcome for Kellogg’s. Following the resignation of Boris Johnson as Prime Minister, the outcome of the Conservative leadership contest will determine whether or not the regulations come into effect in October, or indeed at all.


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