KELLOGG MARKETING AND SALES COMPANY (UK) LIMITED & Anor (R on the application of) v SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE

The vires of subordinate legislation is determined by construing the enabling statute in context and in light of legislative purpose. A restrictive approach applies where there is genuine doubt, particularly where delegated legislation would amend or conflict with primary legislation.

A statutory instrument may lawfully incorporate an existing external document by reference if the enabling statute permits that technique, the document is fixed when the instrument is made, and there is no unlawful sub-delegation or circumvention of parliamentary scrutiny.

For public-health measures, the court should generally accord weight to expert assessment and the decision-maker’s judgment. A nutrient-profiling model assessing food as sold, rather than as consumed with other products, was rational and proportionate.

The claimants, manufacturers of breakfast cereals, challenged the Food (Promotion and Placement) (England) Regulations 2021. The Regulations restrict certain promotions and placements of food classified as high in fat, sugar or salt by reference to the Nutrient Profiling Model and associated Technical Guidance.

The claim advanced four grounds: lack of vires for improvement notices; unlawful incorporation of the Technical Guidance by reference; failure to take relevant considerations into account or make reasonable inquiries; and irrationality and disproportionate interference with property and commercial-expression rights under A1P1 and article 10 ECHR.

The central issues were whether the Secretary of State had statutory authority to create the enforcement regime and incorporate the Technical Guidance, and whether applying the model to breakfast cereals on an as-sold, dry-weight basis was unlawful.

1. Ground 1. Regulation 10 was within the powers conferred by sections 16(1)(e) and (f) and 26 of the Food Safety Act 1990. It created a freestanding enforcement mechanism, although modelled on section 10 of that Act. It did not amend or override section 10’s operation. The statutory powers included appropriate enforcement measures, including improvement notices backed by criminal sanctions.
2. The principles governing Henry VIII clauses remained relevant. The question was one of statutory construction, having regard to context and purpose. Where there was genuine doubt, the court should favour parliamentary supremacy and adopt a restrictive approach. There was no invariable requirement for express words stating that primary legislation was being modified.
3. Ground 2. Section 16 permitted regulations regulating the presentation, advertising and commercial promotion of food by reference to external benchmarks, formulae or scientific standards. The NPTG existed when the Regulations were laid and was not subject to unlawful sub-delegation. The statutory instrument, rather than the incorporated document, was the instrument by which the delegated power was exercised. Parliamentary scrutiny was not unlawfully circumvented.
4. Ground 3A. The decision-maker was not required to reconsider the historical development of the NPM or make further inquiries into the “with milk” issue. The issue had been examined extensively by expert groups and during consultations. The relevant submissions made clear that the model assessed the nutritional content of the food itself.
5. Ground 3B. The restrictions pursued legitimate public-health aims and were rationally connected to them. The Bank Mellat proportionality test was satisfied. The as-sold approach enabled transparent, like-for-like comparisons and avoided uncertainty about portion size, quantity and type of liquid consumed. Foods requiring preparation according to manufacturers’ instructions were rationally distinguishable from breakfast cereals.
6. The court accorded substantial weight to the expert and governmental assessment. The restrictions applied only to HFSS products and left scope for reformulation and promotion of healthier products. The claim was dismissed.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.