“10.— Improvement notices. (1) If an authorised officer of an enforcement authority has reasonable grounds for believing that the proprietor of a food business is failing to comply with any regulations to which this section applies, he may, by a notice served on that proprietor (in this Act referred to as an “improvement notice” )— (a) state the officer's grounds for believing that the proprietor is failing to comply with the regulations; (b) specify the matters which constitute the proprietor's failure so to comply; (c) specify the measures which, in the officer's opinion, the proprietor must take in order to secure compliance; and (d) require the proprietor to take those measures, or measures which are at least equivalent to them, within such period (not being less than 14 days) as may be specified in the notice. (2) Any person who fails to comply with an improvement notice shall be guilty of an offence. (3) This section and section 11 below apply to any regulations under this Part which make provision— (a) for requiring, prohibiting or regulating the use of any process or treatment in the preparation of food; or (b) for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources.”
“16.— Food safety and consumer protection. (1) The Secretary of State may by regulations make— (a) provision for requiring, prohibiting or regulating the presence in food or food sources of any specified substance, or any substance of any specified class, and generally for regulating the composition of food; (b) provision for securing that food is fit for human consumption and meets such microbiological standards (whether going to the fitness of the food or otherwise) as may be specified by or under the regulations; (c) provision for requiring, prohibiting or regulating the use of any process or treatment in the preparation of food; (d) provision for securing the observance of hygienic conditions and practices in connection with the carrying out of commercial operations with respect to food or food sources; (e) provision for imposing requirements or prohibitions as to, or otherwise regulating, the labelling, marking, presenting or advertising of food, and the descriptions which may be applied to food; and (f) such other provision with respect to food or food sources, including in particular provision for prohibiting or regulating the carrying out of commercial operations with respect to food or food sources, as appears to them to be necessary or expedient— (i) for the purpose of securing that food complies with food safety requirements or in the interests of the public health; or (ii) for the purpose of protecting or promoting the interests of consumers.”
“26.— Regulations and orders: supplementary provisions. …(3) Regulations under this Part may— (a) provide that an offence under the regulations shall be triable in such way as may be there specified; and (b) include provisions under which a person guilty of such an offence shall be liable to such penalties (not exceeding those which may be imposed in respect of offences under this Act) as may be specified in the regulations.”
“Miscellaneous and Supplemental”
“48.— Regulations and orders. (1) Any power of the Secretary of State to make regulations or an order under this Act includes power— (a) to apply, with modifications and adaptations, any other enactment (including one contained in this Act) which deals with matters similar to those being dealt with by the regulations or order; (b) to make different provision in relation to different cases or classes of case (including different provision for different areas or different classes of business); and (c) to provide for such exceptions, limitations and conditions, and to make such supplementary, incidental, consequential or transitional provisions, as the Secretary of State considers necessary or expedient. (2) Any power of the Ministers or the Minister to make regulations or orders under this Act shall be exercisable by statutory instrument. (3) Any statutory instrument containing— (a) regulations under this Act; or (b) an order under this Act other than an order under section 60(3) below, shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
“Specified food 3.—(1) For the purposes of these Regulations, “specified food” is food contained in a prepacked food item which— (a) is Schedule 1 food, (b) is less healthy (as defined in paragraph (4)), and (c) is not food to which paragraph (5) (charity food sales) applies. … (4) For the purposes of this regulation— (a) food that is not a drink is less healthy if it scores 4 or more points in accordance with the Nutrient Profiling Technical Guidance; (b) a drink is less healthy if it scores 1 or more points in accordance with the Nutrient Profiling Technical Guidance….” (a) is Schedule 1 food, (b) is less healthy (as defined in paragraph (4)), and (c) is not food to which paragraph (5) (charity food sales) applies. (a) food that is not a drink is less healthy if it scores 4 or more points in accordance with the Nutrient Profiling Technical Guidance; (b) a drink is less healthy if it scores 1 or more points in accordance with the Nutrient Profiling Technical Guidance….”
“Improvement notice 10. If a food authority has reasonable grounds for believing that a person is failing to comply with one or more of regulation 5, 6, 7 or 8, it may, by a notice served on that person (in these Regulations referred to as an “improvement notice”)— (a) state the authority’s grounds for believing that the person is failing to comply with, as the case may be, regulation 5, 6, 7 or 8; (b) specify the matters which constitute the person’s failure so to comply; (c) specify the measures which, in the authority’s opinion, the person must take in order to secure compliance; and (d) require the person to take those measures, or measures that are at least equivalent to them, within such period as may be specified in the notice.” (a) state the authority’s grounds for believing that the person is failing to comply with, as the case may be, regulation 5, 6, 7 or 8; (b) specify the matters which constitute the person’s failure so to comply; (c) specify the measures which, in the authority’s opinion, the person must take in order to secure compliance; and (d) require the person to take those measures, or measures that are at least equivalent to them, within such period as may be specified in the notice.”
“The model uses a simple scoring system where points are allocated on the basis of the nutrient content of 100g of a food or drink. Points are awarded for ‘A’ nutrients (energy, saturated fat, total sugar and sodium), and for ‘C’ nutrients (fruit, vegetables and nut content, fibre and protein). The score for ‘C’ nutrients is then subtracted from the score for ‘A’ nutrients to give the final nutrient profile score. (emphasis added) Foods scoring 4 or more points, and drinks scoring 1 or more points, are classified as ‘less healthy’ and are subject to Ofcom’s controls on the advertising of foods to children on TV. The model applies equally to all food and drink; there are no exemptions or category-specific criteria.”
“The definition for the 5 A DAY programme should be used…Potatoes and other starchy vegetables such as yams do not count.”
“e. Should I calculate nutrient profile scores for products as sold or consumed? Nutrient profile scores should usually be calculated for a product as sold. In cases where a product needs to be reconstituted before it is eaten, for example custard powder, the nutrient profile score should be based on 100g of the product as reconstituted according to the manufacturers instructions.”
“(2) Regulations shall provide for extending, subject to any prescribed conditions, the time within which a claim may be made in cases where it is not made within the prescribed time but good cause is shown for the delay.”
“The principal ground for the decision was that it did not purport to modify section 165A(2) but simply ignored it. It would in any event have been strange if a power to modify had been construed as authorising the annulment of a mandatory provision. The judgments contain passages to the effect that a power to modify the provisions of a statute should be narrowly and strictly construed, and that view is indeed a correct one.”
“Recognition of Parliament's primary law-making role in my view requires such an approach. But it is an approach which is only appropriate where there is a genuine doubt about the effect of the statutory provision in question. Here, the language used seems on its face to leave little room for doubt about the scope of the power in section 31(2).”
“Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made. In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive. That is because the court is preventing a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned. Accordingly, when, as in this case, it is contended that actual or intended subordinate legislation is ultra vires, it is necessary for a court to determine the scope of the statutorily conferred power to make that legislation.”
“The interpretation of the statutory provision conferring a power to make secondary legislation is, of course, to be effected in accordance with normal principles of statutory construction. However, in the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies, para 1.3.11: ‘as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation’.”
“where there is “little room for doubt about the scope of the power” in the statute concerned, it is not for the courts to cut down that scope by some artificial reading of the power.”
“..the rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. However, in relation to the power to amend primary legislation “if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.”
“(3) The goal of all statutory interpretation is to discover the intention of the legislation. (4) That intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose. In this context, it is clear that Lord Hobhouse of Woodborough’s dictum in R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax[2003] 1 AC 563 , 616, para 45, that “A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context” must be modified to include the purpose, as well as the context, of the legislation.” (4) That intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose. In this context, it is clear that Lord Hobhouse of Woodborough’s dictum in R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax[2003] 1 AC 563 , 616, para 45, that “A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context” must be modified to include the purpose, as well as the context, of the legislation.”
“If the court, having taken into consideration the established assumptions or presumptions concludes that statute 2, expressly or by necessary implication, has empowered the executive to make subordinate legislation which has the effect of removing rights conferred by statute 1, the principle enunciated by the Court of Appeal in JCWI… imposes no additional hurdle for the Secretary of State.”
“In view of the provisions of section 33(1) of the Act of 1976, read in conjunction with section 1(1) of the Act of 1946 , I am prepared, for the purposes of this appeal, to accept that the wording of section 33(3) of the Act of 1976 obliges the Secretary of State to place before Parliament a draft of the entire document by which he proposes to exercise his power to make regulations. Nevertheless, in my judgment, that was what he did. The document by which he exercised his power to make regulations was the 14-page document to which I have referred earlier in this judgment. Before he exercised the power, he duly placed before Parliament a draft of that 14-page document and the draft was duly approved by a resolution of each House.”
“the directory was clearly identified in the draft regulations laid before each House. It is not suggested that the members of either House could not have obtained access to a copy of it if they so wished or were misled in any way by the form of the draft or did not fully appreciate the substance of what they were approving.”
“…no circumvention of Parliamentary control was either attempted or achieved……If Parliament had objected to the manner in which the Secretary of State had chosen to identify these maximum awards (by reference to a document not contained in the statutory instrument) or, after scrutiny, had objected to the proposed maximum awards themselves, the remedy lay in its own hands; it could have withheld approval from the draft. It must be taken not to have objected to the draft on these or any other grounds.”
“We consider that the power to define a food or drink product that is “less healthy” should be exercised solely through the making of regulations and not also through the making of guidance. The definition of “less healthy” will have a significant impact on the food and drink industry. For this reason, we also consider that the regulations defining what is meant by “less healthy” should be subject to the affirmative resolution procedure”
“the issue was never subject to detailed assessment and was never resolved”
“The nutritional content of foods is affected by how it is prepared and eaten and foods can be eaten in a variety of different ways – there is no way of knowing how the consumer will eat the food as purchased. For example, there will be people who eat breakfast cereals with different amounts and types of milk, such as whole milk, skimmed milk, soya milk or other liquids such as orange juice. Assessing foods on an “as purchased” basis is the only way of allowing foods to be compared on a “like for like” basis”
“…explained that this issue had been considered on a number of occasions. It had been concluded that the portion size approach had no advantages but some disadvantages. It moved products that were high in fat, sugar or salt but eaten in small portions, such as snacks, towards the healthier end of the spectrum. This was considered to be a disadvantage by the expert group and the academic seminar. There was also added complexity as there were a number of foods that were used in different ways. Also, individuals acted in different ways and behaviour between different age groups of children differed. The use of a 100g method as a basis for advice and legislation on claims was well accepted and used in the UK and internationally. Professor Jackson [Chair of the SACN] added that portion size as a unit could not be measured or quantified with any reliability and also took no account of frequency of consumption.”
“Also in relation to this point, it was noted that as the NP model scores on 100g of dry weight of product, not as eaten, a greater proportion of breakfast cereals fail the model and cannot be advertised. It was noted that this issue had been considered at length when developing the model but that standard portion sizes remained an issue for the industry. It was noted that the issue also applied to some other foods eaten in quantities less than 100g.”
“Secondly, while recognising that a 100g based model did not reflect the actual amounts of some foods being eaten, the group recommended that the base of the model should not be changed. This was because the group was content with the way the model categorised foods. It also reflected concern about the practical difficulties in defining portion sizes, especially for children, together with a concern that a move to per portion could generate unforeseen anomalies in categorisation.”
“Concerns were raised by stakeholders representing the dairy, snack food, confectionery, breakfast cereal and chewing gum industries, that the model should be category based because the current model was felt to be too stringent for some categories and it was hindering reformulation. Stakeholders also felt that if a food contributes a significant proportion of micronutrients (e.g. fortified cereals) to children’s diets then advertising restrictions could result in children become micronutrient deficient.”
“There was a consensus among the group that there was insufficient evidence to support the argument over micronutrient insufficiencies/malnutrition following limiting breakfast cereal advertising to children. It was noted that currently approximately 25% of all breakfast cereals currently meet the model, and that more should be encouraged to pass through reformulation. The group agreed therefore that there was insufficient justification to have a separate category for breakfast cereals.”
“Thirdly, the group discussing category based models recommended that the current NP model should not be changed to a category based model or be modified to include additional categories for dairy products, breakfast cereals or dried fruit. The group considered a number of specific options but did not consider in any of the cases that there was a justifiable nutritional argument to include additional categories.”
“[7]…. It concluded that there are distinct disadvantages in moving to a ‘per portion’ base, such as the variation in manufacturers’ declared portion sizes for similar foods and the variability in amounts consumed by children of different ages and as such it supported the 100g approach applied in the FSA model.”
“One main reason for this is that it does not reflect how food is consumed – e.g. by portion, as in the case for cereals with milk. ACFM therefore feels that more consideration should be given to nutritional consumption which reflects how the product is actually consumed, but we recognise the review panel have considered this option once.”
“there was no justifiable argument to suggest that a category-based approach would be better than a per 100g approach at differentiating foods based on their nutrient content in the context of the broadcast advertising restrictions.”
“Our aim is to restrict promotions of those products that contribute the most sugar and calories to children’s diets. Therefore, we propose that the restrictions should only apply to products which are classed as HFSS and are included in the PHE’s sugar and calorie reduction programmes…. We propose that the 2004/5 Nutrient profiling model (NPM) should be used to define HFSS food and drink products because it is based on scientific evidence and it is already used by industry to determine which products can and cannot be advertised to children. Please see Annex 4 for further details on the 2004/5 NPM.”
“Do you think that the 2004/5 Nutrient profiling model (NPM) provides an appropriate way of defining HFSS products within the food and drink categories proposed for inclusion in this policy (see Annex 4)? Yes/No. If you answered no, what other ways could we use? Please explain your suggestions.”
“The 2004/5 Nutrient profiling model (NPM) was developed by the Food Standards Agency (FSA) to provide Ofcom, the broadcast regulator, with a tool to differentiate foods on the basis of their nutritional composition. Ofcom uses the outputs from the model to regulate the television advertising of foods to children.”
“Are there any comments on the draft of the regulations?”
“The consultation proposed that the 2004/05 NPM is used to define HFSS products. The NPM is based on scientific evidence and it is already used by industry to determine which products can or cannot be advertised to children on TV during children’s viewing times. The NPM provides an overall assessment of the nutritional content of products as it accounts for nutrients of concern (fat, sugar, salt and calories) as well as beneficial nutrients (fibre, fruit and vegetable content).”
“The 2004/5 NPM was developed by the Food Standards Agency to provide Ofcom, the broadcast regulator, with a tool to differentiate foods on the basis of their nutritional composition. Ofcom uses the outputs from the model to regulate the television advertising of foods to children. The NPM scores foods based on their nutritional content. The nutrients considered are split into two categories – A and C. The score for ‘C’ nutrients is subtracted from the score for ‘A’ nutrients to give the final score. A higher score indicates a less healthy food. ‘A’ nutrients consist of energy, saturated fat, total sugar and sodium. ‘C’ nutrients consist of fruit, vegetables and nut content, fibre and protein. Therefore, a food scoring highly on ‘A’ nutrients is not automatically classified as less healthy, only if it additionally scores little on ‘C’ nutrients. Foods scoring 4 or more points, or drinks scoring 1 or more points, are classified as ‘less healthy’. Therefore if a food category in scope has score of 4 or more (or drinks in scope 1 or more) then the restrictions will apply.”
“The technical guidance specified in the regulations (currently known as the “Nutrient Profiling Technical Guidance”) published by the Department of Health on1 January 2011 which supports the 2004/5 Nutrient Profile Model….will be used to define HFSS products within the specified list of product categories…..”
“First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge … it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken…. Thirdly, the court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.”
“74. ….it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. …. I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”
“Public health, and perhaps especially the health of minors, is surely the particular responsibility of elected government. It is in my judgment a strategic goal or aspiration of such importance as to confer a broad margin of appreciation on the decision-maker. So much is well demonstrated on the cases.”
“So the court has to decide whether the authority hasviolated the Convention rights. In doing so, it is bound to acknowledge thatthe local authority is much better placed than the court to decide whether the right of sex shop owners to sell pornographic literature and images should be restricted for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others. But the views of the local authority are bound to carry less weight where [it] has made no attempt to address that question...where there is no indication that this has been done, the court has no alternative but to strike the balance for itself, giving due weight to the judgments made by those who are in much closer touch with the people and the places involved than the court could ever be.”
“…to reduce overconsumption of HFSS products that can contribute to children being overweight or living with obesity….to shift the balance of promotions towards healthier options and maximise the availability of healthier products available on promotion…”
“Monitoring and restricting digital marketing of unhealthy products to children and adolescents”