FMCG giant Kellogg’s has argued that the new High in Fat, Salt and Sugar (HFSS) rules restricting the promotion of products is unlawful and fails to consider that people “overwhelmingly” eat cereal with milk.
As a result the FMCG giant is bringing legal action against the Department for Health and Social Care (DHSC) over the new rules.
According to the parent company of Crunchy Nuts and Coco Pops, the new regulations being introduced in October are “unlawful” because the nutritional value of breakfast cereals will be assessed by their dry weight as sold, rather than how they are eaten.
On Wednesday, Tom Hickman QC, for Kellogg’s, said: “The regulations have, of course, a very laudable and valuable objective of seeking to reduce childhood obesity, and it is an objective that Kellogg strongly supports.”
The barrister added the new regulations do not take into account that cereals “are overwhelmingly consumed with milk” and therefore does not factor in the nutrients added.
According to Kellogg’s, over a quarter of all milk in the UK (28.4%), is consumed with breakfast cereal.
In written submissions, Hickman said: “It is self-evident that breakfast cereals are not eaten dry. They are not designed to be eaten in that way, they are not marketed to be eaten in that way and they are not in practice eaten that way.”
Hickman told the court that other dry products designed to be mixed with liquids are assessed “as eaten” with “the sole exception being breakfast cereals”.
He said: “Other examples in the evidence of dehydrated products and how they are prepared demonstrate it is not simply a question of adding water or milk”.
However, the DHSC is disputing the claim.
In written submissions, Sir James Eadie QC – for DHSC – said the government has “a broad margin” to decide policy related to public health and that the decision was “plainly lawful”.
James wrote: “The thrust of Kellogg’s objection appears to be that, although Kellogg’s HFSS cereal products are intrinsically unhealthy as sold in the packet they may, when consumed, provide a route to the consumption of a healthier product.
“It does not appear to be Kellogg’s position that the consumption of semi-skimmed milk will contribute in any way to a reduction in childhood obesity or that mixing their HFSS cereals with milk will somehow reduce the sugar that is consumed.”
James also added that Kellogg’s cereal Frosties, which has 37g of sugar per 100g of dry product, is classified as high in sugar when assessed as sold but would be classified as a non-HFSS product if assessed with milk.
“Assessing Kellogg’s cereals ‘as consumed’ with milk would reduce the power of the NPM to distinguish healthier foods from the less healthy foods which are of concern to childhood obesity,” the barrister said.