Food for thought: Successful judicial reviews in the consumer sector

Two recent High Court judgments have illustrated the importance of public law in the food and consumer sector, highlighting the possibility of successful judicial review challenges to decisions made by public bodies. R (on the application of Association of Independent Meat Suppliers) v Food Standards Agency [2026] EWHC 1327 (Admin) (AIMS) concerned the charges levied by the Food Standards Agency (FSA) in relation to the exercise of official controls and other activities in slaughterhouses. Beyond GM v Secretary of State for Environment, Food and Rural Affairs [2026] EWHC 1306 (Admin) concerned the Secretary of State’s decision to make the Genetic Technology (Precision Breeding) Regulations 2025 (the 2025 Regulations) and the impact of the lack of a mandatory labelling requirement for precision bred organisms (PBOs).

Key points

• Errors of law matter: 
  • Incorrect legal advice can vitiate an otherwise defensible ministerial decision; Beyond GM underscores the importance of rigorous legal review of briefings and ministerial submissions before significant regulatory decisions are made.
  • Where regulators are exercising intrusive powers, such as charging, the courts will police carefully whether they are acting strictly within their powers and will often require clear words in legislation to authorise charges being levied. 
• Limits of deference in consumer-facing contexts: Both claims succeeded despite the deference courts ordinarily afford to public bodies exercising regulatory and policy-making functions. In AIMS, the court conducted a detailed analysis of the legislative scheme and CJEU jurisprudence to identify the precise limits of what could lawfully be charged. In Beyond GM, the court found irrationality even in a policy context.
• Consumer sector as a fertile ground for JR: Both cases arose in areas – charging for food safety regulation and food labelling - where public law interfaces directly with commercial and consumer interests. The success of claimants in both cases suggests that those in the consumer and food sectors should maintain a close awareness of the boundaries of public bodies’ decision-making powers.

Background

AIMS

The claimant in this case was challenging the legality of charges imposed by the FSA on food business operators, arguing that only the actual performance of official controls (e.g. relating to food safety) or activities “inextricably linked” thereto could be included. AIMS also challenged what was included in the FSA’s Enforcement Rate, used to charge for activities specifically addressing regulatory non-compliance. The FSA’s charges had increased above the rate of inflation. 

Beyond GM

A PBO is an organism that has a genome with a feature that resulted from the application of modern biotechnology, but where that feature is stable and could have resulted from traditional breeding processes. The crux of the dispute centred on the fact that the 2025 Regulations permit the release of PBOs into the environment and food chain without labelling or effective traceability, despite businesses certified as organic being required to ensure PBOs do not enter the supply chain. The Genetic Technology (Precision Breeding) Act 2023 (the 2023 Act) provides a general power in relation to regulation and traceability of PBOs. However, the 2025 Regulations did not exercise the power available under the 2023 Act to impose requirements to secure traceability.

This claim was advanced on multiple grounds and was dealt with at a rolled-up hearing, where permission and substantive merit were considered together. The claimants (who included organic farmers) alleged, amongst other things, that the 2025 Regulations were incompatible with respect for private life (Article 8 (Art. 8)) and peaceful enjoyment of possessions (Article 1 of Protocol 1 (A1P1)) of the European Convention of Human Rights; and that the decision to implement the 2025 Regulations was irrational, including because there was a failure to undertake adequate enquiries. 

Judgments

AIMS

The FSA argued that post-Brexit domestic amendments to the applicable European legislative framework permitted it to recover a broader range of costs "connected with" official controls. The court rejected this, holding that the starting point had to be the domestic regulations which actually contained the power to charge operators, with the relevant provision limiting costs to those “incurred by an inspector…in exercising controls”. It was on this basis that the court accepted AIMS’ submissions that the recovery of overheads was limited to “costs…incurred by an inspector in exercising official controls or are inextricably linked to the exercise of official controls”. Costs such as internal audit, performance management, supervision of inspectors, and handling of parliamentary questions and complaints could not form part of the permissible charge, both because they were not costs incurred "by an inspector" and because they were not costs incurred "in exercising controls" or inextricably linked to the performance of official controls. If the intention had been to allow recovery of such charges post-Brexit, clearly worded amendments to this effect would have been required. The court noted that it seemed unlikely that the domestic legislator intended to depart from the EU interpretation since that would have disadvantaged the domestic industry as against its EU competitors. 

In relation to the Enforcement Rate, the court started by acknowledging a considerable amount of confusion on all sides as to the source of the FSA's power to charge for enforcement activities. Ultimately, however, Dias J saw no issues with the FSA recovering costs of enforcement-related official controls at a different rate, but the meaning of ‘official controls’ needed to be in line with the court’s earlier findings. The FSA was found to have included some matters in the calculation of the Enforcement Rate which it was not lawfully entitled to take into account. 

Beyond GM

In relation to the claimants’ human rights ground, they argued that the 2025 Regulations were incompatible with Art. 8 and A1P1 on the basis that they threatened the ability of organic businesses to retain organic certification, given that businesses cannot determine which products contain PBOs. The court accepted, under Art. 8, that the retention of the organic certification of the claimants was relevant to their private lives. However, given that it was still possible to retain their organic certification (albeit significantly harder) the court held that the impact of the 2025 Regulations did not come close to the minimum level of severity needed to engage Art. 8. In relation to A1P1, whilst the withdrawal of organic certification could engage A1P1, the claimants failed to show the court that the 2025 Regulations would deprive them of their possessions, given they can maintain their organic certification. Permission was refused by the court in relation to this ground.

Whilst the claimants did not advance a claim for an error of law, under their irrationality challenge they submitted that the Minister was wrongly told that the 2023 Act did not enable him to introduce mandatory labelling, which affected the enquiries that he made. It was common ground between the parties that the 2023 Act gave the Minister a power to introduce mandatory labelling, and therefore the court’s role was to assess whether the reason the Minister did not exercise this was because he believed he did not have the power to do so. The court acknowledged that the Minister understood the arguments for and against introducing mandatory labelling, but decided nonetheless to press on with the 2025 Regulations without including mandatory labelling. He decided to prioritise the interests of commercial innovators and to try and capitalise on the “first mover” advantage, rather than undertake further enquiries. All of that may have been capable of withstanding a rationality challenge if the Minister had correctly understood his legal powers but the available evidence demonstrated that he had been given incorrect information as to his powers under the 2023 Act. The court ultimately held that, if the Minister had understood that he had power to mandate labelling more broadly, there was a real possibility that he would have considered a materially different range of options. It was therefore not highly likely that the outcome would have been substantially the same (for the purposes of s. 31(2A) of the Senior Courts Act 1981). It was not necessary to find that he would have taken a different course. The decision-making had been materially constrained by a misunderstanding of his legal powers. That rendered the lack of further enquiry, and the decision itself, irrational.

The Secretary of State took a timing point in relation to the claim, namely that whilst it was filed within the three-month backstop period, it was not filed sufficiently “promptly”. The basis for this argument was the impact of the 2025 Regulations on third parties, as well as the fact the proceedings were said to be brought in the public interest. In coming to its decision, the court looked at the parties' engagement in pre-action correspondence, the complexity of the issues of the case, and the Secretary of State’s approach (e.g. seeking extensions of time rather than expedition). It ultimately found that there had been no failure by the claimants to act promptly, and that in any event, the claim raised issues of sufficient importance to the sector that the court would have granted an extension of time.

Comment

These cases demonstrate the limits to the deference normally afforded to public bodies by the courts, in particular in the food safety and labelling context, which interfaces directly with consumer interests. Where the legislative and regulatory regime is complex and/or where decision-makers are making significant decisions quickly for political or commercial reasons, errors of law sufficient to invalidate a decision may creep in. Potential claimants in these sectors should be encouraged by the court’s findings in these proceedings, which indicate a possible fertile area for successful judicial review claims.