The UK Government is considering an outright ban on the online advertising of foods high in fat, sugar and salt (HFSS).
A range of businesses that will be directly or indirectly affected will consider this ban hard to swallow. They will already be considering ways to challenge this draconian move.
It is not at all clear that a ban on online HFSS advertising would be more effective than clearer labelling, better education and restrictions on discounts and multi-buys involving HFSS products. Proof that a ban on HFSS advertising would be effective at all seems pretty thin.
There are already tight restrictions on HFSS advertising in the UK, across broadcast and non-broadcast media, and many question what a further tightening of rules would achieve, beyond starving the UK of this stream of advertising revenue.
Manufacturers and brands may be considering whether there might be ways of stopping such a ban from coming into effect, beyond lobbying.
One option might be the often-overlooked and admittedly very niche avenue of judicial review.
In this article, we will consider what judicial review is, and when might it be an option.
What is judicial review?
Judicial review is the procedure by which the courts examine the rules and decisions made by public bodies to ensure that those public bodies act lawfully and fairly. It can be used in relation to secondary legislation (e.g. Statutory Instruments), but it does not apply to primary legislation (e.g. Acts of Parliament).
A claim is initiated by an 'interested party'. Judicial review involves the court conducting a review of the process by which a public body has reached a decision, or created a rule, to assess whether it was validly made.
Using judicial review, the courts can challenge the decisions of government ministers and departments, industry regulators, local authorities and other public bodies.
The authority of the courts to do this has its origins in statute, but the principles of judicial review are based on case law, so they are continually evolving.
If the courts uphold the claim, they cannot change the measure, but they could quash it or prohibit it from coming into effect.
As mentioned above, primary legislation cannot be challenged using judicial review. This is because Parliament is sovereign. Side note: while primary legislation cannot be the subject of judicial review, primary legislation could be challenged if it is considered to be a breach of the Human Rights Act 1998.
So, if a ban on online HFSS advertising is introduced via secondary legislation or binding guidance, for example, rather than primary legislation, it could be challenged using judicial review.
A remedy of last resort
Even when it is applicable, judicial review is a remedy of last resort – therefore any affected business would need to carefully consider all other possible alternatives before turning to judicial review.
Potential grounds for judicial review
When judicial review is an option, it only works when one can establish one of four main grounds:
1. Illegality - such as when a public body exercises its powers wrongly, misdirects itself in law, or acts beyond its prescribed powers.
2. Irrationality - such as when:
- the decision-maker made a mistake of fact,
- the decision-maker took into account irrelevant matters or failed to consider relevant matters, or
- the decision is so unreasonable that no reasonable authority could ever have come to it - this includes where the decision is so disproportionate to the aim it is seeking to achieve that it is unreasonable.
3. Procedural unfairness - such as a failure to follow the relevant statutory procedures (including a failure to consult or to give reasons, or if the consultation process was flawed), or where there has been a failure to apply the principles of natural justice in the decision-making process (e.g. if the decision-maker has shown bias or failed to hear an affected party).
4. Failure to satisfy a legitimate expectation - there may be a legitimate expectation that a public body will act in a certain way and it fails to do so. This is rare and such an actionable 'legitimate expectation' only arises in exceptional cases.
What does this mean for online HFSS advertising?
In the context of HFSS advertising, assuming judicial review is even an option, the grounds may be that the consultation was carried out badly or unfairly (if that turns out to be the case). Alternatively, that the prohibition is so disproportionate to achieve its goal, that it fails the reasonableness test mentioned above.
HFSS advertising to children (in any media) has already been banned. When it comes to educating grown ups about making healthy, nutritional choices, it seems like an odd sticking plaster to ban online HFSS ads before taking other sensible and more proportionate measures.
Alternative steps include restrictions on discounts or multi-buy promotions involving HFSS food and drink, and clearer and more consistent labelling - all of which would be likely to be more sensible steps in the battle to improve the nation's health. However, there would be significant political push-back if the government were to introduce bans on discounts or multi-buys on food at a time when the economy is not exactly in rude health, and reliance on food banks is high. Such measures are likely to hit poorer families the hardest, and may do more harm than good.
So, a ban on online HFSS advertisements seems like a politically expedient choice for the UK Government, even if there seems to be very little proof it is an effective or proportionate way forward, and despite its impact on advertising (and possibly sponsorship) revenues.
Examples of judicial review regarding advertising
Back to judicial review. Are there any examples of judicial review being used in the context of advertising? Despite seeming like a rare and nice measure, the answer is 'yes' - but the results have been distinctly mixed.
The Advertising Standards Authority (ASA) has been the subject of several judicial reviews over the years. One of the most recent related to fibre broadband and actually related to a policy decision rather than an adjudication. City Fibre challenged the ASA’s approach to the advertising of broadband products but failed to reach the very high threshold for a successful judicial review. You can read more about this case here.
In 2019, in a case concerning the advertisement of electrical stimulation products for feet, the court was willing to entertain grounds for judicial review on the grounds of irrationality and the principle of proportionality. The court found that the ASA’s assessment and conclusions, that the scientific evidence supplied in support of the medical claims as advertised was inadequate, were rational and proportionate. You can read more about that one, here.
Further back, in 2014, Sainsbury’s failed in its attempt to have the ASA’s decision regarding Tesco’s Price Promise scheme overruled. The products being compared did not the same certification, for example, fairtrade tea being compared with tea which was not fairtrade, which Sainsbury’s said was misleading. However, the High Court disagreed and upheld the ASA’s process and decision.
However, judicial review can sometimes be successful. For example, in 2011, the High Court judge overturned a decision by the ASA that an advertisement by a Belfast church was homophobic. The judge ruled the ASA's decision interfered with the church's rights to freedom of expression.
Minimum pricing for alcohol
When the Scottish Government passed the Alcohol (Minimum Pricing) (Scotland) Act 2012, with the aim of reducing alcohol-related harm in Scotland, the Scotch Whisky Association and other trade bodies across the EU, tried various means to stop it coming into force, including arguing that it was contrary to EU laws on free trade and that it discriminated against poorer drinkers (although primary legislation, it could be challenged if it was considered to be contrary to EU law while the UK was in the EU). The challenges were unsuccessful, but the introduction of minimum pricing was delayed for several years while the case passed through the Court of Session, the Court of Justice and the UK Supreme Court.
Ultimately, the Supreme Court ruled that the minimum pricing was a proportionate means to meet a legitimate aim and a similar scheme now operates in Wales as well as Scotland.
Possible changes to the NHS?
On 6th February, The Times reported on a leaked White Paper which indicates that the UK Government is planning a fundamental reform of the NHS.
It is reported that the government would introduce the advertising ban as an incidental part of those changes, though it is not clear whether it would be introduced under an overarching Act of parliament or secondary legislation.
As mentioned above, if it were to be introduced under an Act it could not be challenged using the Judicial Review mechanism, unless it was considered to be a breach of the Human Rights Act 1998.
The plot thickens
Following “unease” among some Tory MPs about the role of the courts in the Brexit process, the Conservative party promised in its manifesto (before the 2019 election) that the government would “update” administrative law to ensure a “proper balance” between individual rights, national security and effective government.
It went on to say that it would ensure that judicial review “is not abused to conduct politics by another means or to create needless delays.”
An independent panel began looking at judicial review in 2020 and it may be that any changes proposed would in future limit further the chances of challenging decisions by the Government.
Those who champion parliamentary sovereignty might be pleased - while those who worry about limiting checks and balances on those in authority will be less so.
The way ahead for HFSS advertising regulation
There is still a long way to go with the consultation and possible changes to the NHS, and the consultation on potential changes to judicial review itself.
As for the proposed ban on online HFSS advertising, it may never happen, or it might be substantially reduced in scope. However, while it would be an uphill struggle, the extensive and draconian nature of such a total ban on all online advertising for HFSS products – products which can be freely purchased in the UK – is vulnerable to challenge due to be apparent lack of proportionality if it is passed using secondary legislation, or if it is introduced by means of updated rules or guidance by a regulator, rather than primary legislation.
Time will tell whether the UK Government will succeed in introducing this clumsy, headline-grabbing totalitarian ban on online HFSS advertising, or whether a more sensible, practical and proportionate way forward can be found.
When it comes to cutting off online HFSS ads, I call for a second opinion before going ahead with this drastic amputation.
“To think about tackling something as important as this, which would have a major operational impact when we come out the other side, at a time when industry is closed… seems odd to say the least” - Kate Nicholls, chief executive of UK Hospitality