Burger vans and trading bans

According to the Scotsman (“Burger van owners claim ban infringes human rights”), a legal challenge has been launched against North Lanarkshire Council‘s policy which prohibits fast food vans from trading within a 250-metre radius of any of its schools. The policy is said to be part of the Council’s efforts to combat childhood obesity. The headline refers to the fact that five van owners are apparently claiming that their human rights, as well as those of the pupils, have been infringed by the exclusion zone.

Exclusion zones of this sort are also in place in Glasgow City Council and East Ayrshire Council, but this is thought to be the first challenge of its kind in Scotland.

Scott Blair, the advocate representing the van owners, is reported to have argued that factors other than child health had to be taken into account when ascertaining whether the ban was legally binding.

“Everybody has the right to choose what kind of food they want to put into their body, no matter how healthy or undesirable that food may be. Those under 16 may well be influenced by what their parents eat but everybody has a choice as to what they want to eat.”

“There may be nutritional guidelines on school meals but pupils have the right to choose to bring food in from outside the school.”

The nutritional guidelines in question are Healthy Eating in Schools: A Guide to Implementing the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008.

Legally this raises an interesting question.  As Mr. Blair indicates, food or drink brought onto school premises by pupils is exempted from the scope of Section 56A of the Education (Scotland) Act 1980 (inserted by the Schools (Health Promotion and Nutrition) (Scotland) Act 2007).  However, Section 2A of the Standards in Scotland’s Schools etc. Act 2000 (also inserted by the 2007 Act) imposes a general duty on education authorities to ensure that their schools are health promoting.

In relation to food and drink actually served up by school canteens, the terms of the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2008 prescribe various nutritional requirements for food and drink in schools.

Requirements for school lunches include:

  • not less than 2 types of vegetables (not including potatoes) shall be provided every day;
  • not less than 2 types of fruit shall be provided every day;
  • bread shall be provided every day;
  • oily fish must be provided at least once every 3 weeks;
  • no savoury snacks shall be provided except –
    • (a) savoury crackers,
    • (b) oatcakes, or
    • (c) breadsticks;
  • no confectionery shall be provided and cakes, biscuits and puddings must not contain any confectionery;
  • deep fried food shall not be provided more than 3 times in a week;
  • chips may only be served as an accompaniment to other food.

It is not clear whether this last requirement rules out the service of a roll and chips or not. While deep fried food is permitted thrice weekly, the ban on confectionery rules out that Scottish staple, the deep fried Mars bar. Further nutritional standards are imposed, including a list of permitted drinks, which effectively bans Irn-Bru and Sunny-D from schools.

Gratifyingly, the regulations do not apply to food or drink provided as part of a medically recommended diet for any pupil. Finally, schools must ensure that drinking water is provided free of charge at all times to pupils on the premises of public schools.

Meanwhile, the legal battle over what takes place outwith the school gates continues.  In the words of “piker20” on the Scotsman comments page: “Buy one get type 2 free”!

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