The Frosties and Coco Pops maker was challenging the UK government’s calculations of HFSS products, arguing the nutritional value of breakfast cereals should be assessed by how they are eaten, rather than their dry weight as sold.
“It is self-evident that breakfast cereals are not eaten dry,” argued the manufacturer’s barrister Tom Hickman QC.
“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.”
Kellogg’s contend breakfast cereals are typically eaten with milk, confirmed by inhouse research by Fairlife, which revealed that 81% of Americans are most likely to drink a glass of milk with their breakfast over other meals.
- According to the national survey, classic dairy milk is the preferred choice over non-dairy alternatives for 77% of Americans.
- 66% of respondents prefer to pour cold milk over their hot oatmeal;
- 44% Millennials are more likely that other generations to pour in their milk before settling on their cereal choice;
- 50% of respondents let their cereal sit in the milk before they eat it;
- 74% of Millennials, 72% of Gen Zers and 56% of Boomers love the taste of cereal-infused milk;
- 38% of respondents enjoy a glass of milk with toast;
- 20% of respondents enjoy a glass of milk with fruit;
- 51% of parents are more likely to choose milk over tea/coffee, water and soda as their favourite comfort drink;
- 69% of respondents drink milk for nutrition and 61% for taste.
But in his judgement at the beginning of July, Mr Justice Linden dismissed Kellogg’s claim.
Noting that there is “no dispute” that breakfast cereals can be part of a healthy diet, he added, “the argument that there are nutritional benefits to the consumption of a given breakfast cereal does not affect the point that if it contains excess fat, sugar or salt, that feature of the product is adverse to a child’s health.”
He also found the issue of how cereals are consumed and should be measured had been considered and resolved in consultations.
The new timeline
October 2022: Instore laws remain applicable in England and Wales from October this year, banning HFSS products from ‘impulse’ areas such as checkouts or gondola ends. [Some exemptions do apply: stores that are smaller than 185.8m2 (2,000 square feet); speciality food stores that sell one type of product, such as chocolate; and businesses with less than 50 employees.]
October 2023: A veto on multibuy deals on foods and drinks and restrictions on free refills for soft drinks will now be delayed for a year.
January 2024: The planned restrictions for banning HFSS being advertised on TV before 9pm and paid-for adverts online have also been pushed back and will come into force January 2024.
A wholly owned subsidiary of The Coca-Cola Company, Fairlife – founded in 2012 – has been recognised by both Fast Company and Nielsen for pioneering ultra-filtration in the dairy industry and a portfolio of better-for-you products that are leading the value-added dairy category – from ultra-filtered lactose-free milk and protein shakes to light ice cream.
In 2021, the company achieved double-digit sales week over week, culminating in an annual record of more than $1bn in total US retail sales.