With respect to the National Heart Forum (NHF) complaint below, two questions are raised:

1. Was it wrong for Ofcom to not include a pre-9pm total ban on junk food (HFSS) adverts in its consultation options? Probably. Ofcom could have easily made this option one of the options upon which it specifically sought comment. Ofcom definitely put the cart before the horse - it made the substantive conclusion and then sought the comments. This is a particularly flawed approach because in this case (junk food advertising) Ofcom certainly is not the sole repository for expertise. However, to be fair to Ofcom, it has specifically stated that it will consider arguments for options — like the pre-9pm ban — that are not specified in the consultation documents. So everyone is entitled to have their say.

2. Was it wrong for the NHF to seek judicial review of this problem during the consultation? Definitely. Where I come from this is known as an interlocutory appeal. Such appeals are almost universally discouraged in courts because they are disruptive and inefficient. The same is true here. NHF can comment all it wants on the pre-9pm ban issue during this consultation and Ofcom have said that they will listen. What more can a court order Ofcom to do? Thereafter - assuming the NHF is unsuccessful in convincing Ofcom - the NHF can take whatever legal or political actions it deems necessary. Interlocutory appeals are disruptive in this case because they prohibit Ofcom from simply doing its job. Will that job be mistake-free? Probably not - people’s opinions will differ. But the time to test whether Ofcom made actionable mistakes is AFTER the consultation, not during it.

What I think is most ironic is that the NHF accuses Ofcom of heavy-handed tactics — in litigation that the NHF is otherwise pursuing! No matter what a person’s view is on junk food adverts, it is certainly heavy-handed in my opinion to commence litigation before Ofcom have even rendered an opinion.

Here’s a remarkable idea: The NHF and its supporters and allies dismiss their lawsuit. They should simply get their best arguments together and submit comments to Ofcom by the June 30th deadline. They will be treated the same as everyone else.