With every sector under pressure from the pandemic, and the UK Government considering an outright ban on the online advertising of foods high in fat, sugar and salt (HFSS), many brands will consider a total ban hard to swallow.
Many businesses which will be directly or indirectly affected will be considering ways to challenge this draconian move.
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 avenue of judicial review.
What is judicial review?
Judicial review is where the courts review public functions by public bodies. A “public function” can be a law or a decision. Therefore, if the government legislates to ban online advertising of HFSS foods, or uses some other means, such as statutory (legally binding) guidance, the measure could be challenged. The courts cannot change the measure, but they could quash it, or prohibit it from coming into effect.
Judicial review is a remedy of last resort – therefore any affected business would need to carefully consider all other possible alternatives. You can only challenge on grounds of illegality, irrationality, if there is procedural unfairness (such as a flawed consultation process), or if there is a legitimate interest of how the public body concerned may act.
In the context of HFSS advertising, the grounds may be that the consultation was carried out badly or, more likely, that any new law is considered to be a disproportionate way of reducing the impact of so-called junk food.
Examples of judicial review regarding advertising
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<!--[if !supportNestedAnchors]--><!--[endif]-->.
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. 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.
The way ahead for HFSS advertising regulation
There is still a long way to go with the consultation and the proposed ban 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.
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, proportionate outcome will be achieved.
“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