The campaign against junk food at schools may be illegal

Beginning with the start of the Polish school year on 1 September 2015, student stores at Polish schools will be bound by law to stop carrying many of the comestibles most popular among pupils. While the public policy goals of the pertinent regulations – fostering health, preventing obesity – are beyond reproach, the specific legal mechanisms brought to bear by the lower chamber of Polish parliament in this regard may give rise to certain doubts, including ones of a constitutional nature.

What’s forbidden 

The regulations enacted by the Sejm do not actually specify what food products may be sold at schools and educational institutions. Rather, they refer to broader categories of food products approved for sale at schools “with due heed for child and young adult nutrition norms and taking into account the nutritional and health values of comestibles”.

The excessively broad scope of powers with respect to authority to promulgate regulations on the basis of these general rules give rise to certain reservations. There is no intimation as to which nutritional norms the minister ought to take into account, how she should take them into account, or how the taking into account of the nutritional and health values of any given product might be attested to. Such a formulation precludes subsequent control of the eventual regulation’s compliance with the authorisation, possibly inviting a finding that the competence norm violated art 92.1 of the Polish constitution (please see, for example, the Constitutional Tribunal ruling of 31 March 2009, case ref K 28/08).

Interestingly enough, the previous draft of the legislative act in question (Sejm print no 1127), rather than relegating the matter to a future regulation, expressly set maximum limits for ingredients such as artificial sweeteners or salt. This was a decidedly less controversial solution.

Dubious proportionality 

The next reservation refers to whether or not the measures adopted are commensurate with their goal. The statute in question constitutes, in its essence, a limitation imposed on commercial activity and, as such, shall be subject to constitutional evaluation from the perspective of compliance with the principle of proportionality (please see, for example, the Chief Administrative Court ruling of 7 March 2014, case ref II GSK 908/13), which has it that the legal method chosen for attaining an objective shall be the one which is least onerous to those who will be subjected to restrictions in this context. To date, the Polish legal system imposed some manner of sale controls only on exceptional product categories (such as alcohol, tobacco products, or certain classes of energy drinks), and this only for special reasons.

The fact that the list of banned ingredients, as set out in the previous draft, has been replaced with a list of permitted products must also give rise to questions. This means that sale is permitted only with respect to products which are expressly permitted, rather than to all products which are not expressly barred. If, then, the regulation fails for one reason or another to make mention of some particular group of health foods, products from this group cannot be sold at schools – hardly a satisfactory solution for the manufacturers of such products, or for the store owners.

During work on the legislative act, it was emphasised that the government would be best advised to promote healthy lifestyles among children, not to lay down restrictions on sales. Such an educational and promotional tack, by the way, is being adopted in other European countries. It might be borne in mind that, in all probability, a pupil who does not find a salty snack or a sugary soda at his school store will be able to purchase the same products without any difficulty a few steps away from the school gates, so a legal instrument which focuses on banning sales may have little effect other than changing the place where pupils obtain their sugar fixes. One way or the other, constitutionality of the act may well turn on the question of whether the legislature has opted for the appropriate means of achieving its objective.

Headmasters wield absolute power 

Doubts also arise with respect to the fact that decisions as to what products may or may not be sold at school stores are left in the hands of individual headmasters. In this way, school principals and parent councils end up with arbitrary power – a food manufacturer whose products meet the requirements laid down in the executory instrument may nonetheless have those products banned from a specific school. Of course, school directors should be able to define what products may be sold at school stores, but this issue should be regulated on the civil law level, in contracts made between the given school and the owner of the school store.

There is some hope that these doubts may be resolved in the course of further legislative work. They certainly merit consideration – not only on account of upholding certain values but, more mundanely, also on account of potential claims which might be brought by school store owners or by food producers if the law on junk food sales at schools in its current form is eventually found to contravene the Polish constitution.