Regulating Tobacco, Alcohol and Unhealthy Foods

The Legal Issues

Tania Voon, Andrew Mitchell, Jonathan Liberman, Tania Voon, Andrew Mitchell, Jonathan Liberman

• Publisher: Taylor & Francis
• Year: 2014
• Print ISBN: 9780415722346
• eBook ISBN: 9781317910848
• Edition: 1
• Topic: Medicine
• Subtopic: Law Theory & Practice

The need to reduce disability and premature deaths from non-communicable diseases (NCDs) is increasingly engaging international organisations and national and sub-national governments. In this book, experts from a range of backgrounds provide insights into the legal implications of regulating tobacco, alcohol and unhealthy foods, all of which are risk factors for NCDs. As individual countries and the international community move to increase targeting of these risk factors, affected industries are turning to national and international law to challenge the resulting regulations.

This book explores how the effective regulation of tobacco, alcohol and unhealthy foods can be achieved within the context of international health law, international trade and investment law, international human rights law, international intellectual property law, and domestic laws on constitutional and other matters. Its contributors consider the various tensions that arise in regulating NCD risk factors, as well as offering an original analysis of the relationship between evidence and health regulation.

Covering a range of geographical areas, including the Americas, the European Union, Africa and Oceania, the book offers lessons for health and policy practitioners and scholars in navigating the complex legal fields in which the regulation of tobacco, alcohol and unhealthy foods takes place.

Part I

Challenges of Non-Communicable Diseases

1 Introduction: Law and the Growing Burden of Non-Communicable Diseases

Tania Voon

Non-communicable diseases (‘NCDs’) are estimated to account for close to two thirds of the deaths occurring globally, with the burden of NCDs increasing and falling predominantly on low- and middle-income countries.¹ Cardiovascular diseases, cancers, chronic respiratory diseases and diabetes together ‘make the largest contribution to morbidity and mortality’ due to NCDs.² In turn, ‘four shared behavioural risk factors’ can be identified for these types of NCDs: ‘tobacco use, unhealthy diet, physical inactivity and harmful use of alcohol’.³ These diseases and risk factors form the core of international action that has developed over the last two decades to combat the growing problem of NCDs around the world.

Regulation forms a central part of national and international strategies to combat NCD morbidity and mortality, particularly regulation regarding the risk factors of tobacco use, unhealthy diet and harmful use of alcohol. The law is thus a crucial tool in targeting NCDs. Yet, at the same time, local, national and international laws have been used to challenge NCD risk factor regulation, for example, on the grounds that it infringes freedom of speech or property rights or that it discriminates against foreign investors or imported products. This book is designed to explore the interaction between the law and NCDs, and specifically the legal issues surrounding the regulation of tobacco, alcohol and unhealthy foods.

1 Developments on NCDs in the World Health Organization and the United Nations

In 1998, the World Health Assembly – the decision-making body of the World Health Organization (‘WHO’) – adopted a resolution calling on WHO member states ‘to collaborate with WHO in developing a global strategy for the prevention and control’ of NCDs.⁴ This resolution was followed in 2000 by the World Health Assembly adoption of a Global Strategy for the Prevention and Control of Noncommunicable Diseases⁵ and another resolution on NCDs.⁶ In order to implement the global strategy, in 2008, the World Health Assembly endorsed an action plan for the period 2008 to 2013.⁷

Progress has accelerated, moving beyond the WHO to the broader United Nations (‘UN’) in recent years. In 2010, the UN General Assembly adopted a resolution on NCDs, noting that:

the conditions in which people live and their lifestyles influence their health and quality of life and that the most prominent non-communicable diseases are linked to common risk factors, namely, tobacco use, alcohol abuse, an unhealthy diet, physical inactivity and environmental carcinogens, being aware that these risk factors have economic, social, gender, political, behavioural and environmental determinants, and in this regard stressing the need for a multisectoral response to combat non-communicable diseases …⁸

In recognition of the urgency and significance of NCDs, the General Assembly decided to convene a high-level meeting of the General Assembly in 2011 and requested the UN Secretary-General to submit a report on the global status of NCDs.⁹

In his report presented to the General Assembly in May 2011, the Secretary-General Ban Ki-moon noted that ‘[t]he rapidly growing magnitude of such diseases is driven in part by population ageing, the negative impact of urbanization and the globalization of trade and marketing … particularly for tobacco, food and alcohol’.¹⁰ Referring to NCDs as representing ‘a global epidemic’,¹¹ the Secretary-General noted their adverse impact on the Millennium Development Goals¹² and recommended that UN member states ‘[i]mplement cost-effective population-wide interventions, including through regulatory and legislative actions, for the non-communicable disease-related risk factors of tobacco use, unhealthy diet, lack of physical activity and harmful alcohol use’.¹³

Following the high-level meeting of heads of state and government and other state and government representatives, held in September 2011, the General Assembly adopted a resolution adopting the political declaration generated in the meeting, recognising ‘the primary role and responsibility of Governments in responding to the challenge of non-communicable diseases’¹⁴ and that ‘the rising prevalence, morbidity and mortality of non-communicable diseases worldwide can be largely prevented and controlled through collective and multisectoral action by all Member States and other relevant stakeholders at the local, national, regional and global levels’.¹⁵ This political declaration encapsulated the growing recognition of the NCD epidemic and the significant role of governments in addressing it, including through regulation.

In May 2013, the World Health Assembly endorsed¹⁶ the Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013–2020,¹⁷ with the overarching goal being:

To reduce the preventable and avoidable burden of morbidity, mortality and disability due to noncommunicable diseases by means of multisectoral collaboration and cooperation at national, regional and global levels, so that populations reach the highest attainable standards of health and productivity at every age and those diseases are no longer a barrier to well-being or socioeconomic development.¹⁸

These multilateral developments present an opportune time for research and reflection on the way that law can be used to promote the prevention and control of NCDs around the world.

2 The role of law and evidence in NCD risk regulation

Part I of this book sets out overarching principles that inform the rest of the volume. In Chapter 2, Jonathan Liberman continues the discussion of the global architecture for NCD governance, explaining the various mechanisms and agencies involved in implementing the current action plan within the broader context of global health. He demonstrates how law can be used both ‘as a proactive intervention to reduce exposure to NCD risk factors’ (for example through regulation establishing smoke-free public areas) and ‘as setting the context within which power is exercised and constraints on the exercise of that power’ (for example through constitutional provisions that provide for the creation of legislation and constitutional guarantees that set limits on legislation). Liberman provides several suggestions for using law effectively to prevent NCDs, despite the fact that efforts to do so ‘are liable to face legal challenges (or threats of such challenges) in both domestic and international fora’. He emphasises the need for expertise in relevant areas of law throughout relevant stages of policy-making, and the differences and similarities between the three risk factors addressed in this book.

In the sphere of NCD risk factor regulation, strong evidence can be used to defend policy measures that are subject to legal challenge in domestic or international tribunals. Moreover, evidence is essential in the development of appropriate and effective measures to combat NCD risk factors. Recognising that NCD risk factor regulation may require innovative policy-making, in Chapter 3, Evan Anderson and Scott Burris provide an in-depth analysis of the ways in which research can be used to enhance the development of policy in a manner that is properly informed by and based on evidence. Using concrete examples from US laws, for example regarding the use of child restraints in motor vehicles and the incidence of concussion in sports, they illustrate the importance of the definition of a given policy problem to the subsequent success of the policy response, and the different ways in which knowledge can be used to identify and select appropriate legal interventions. Anderson and Burris highlight the different ways that evidence can be used in the three stages of problem definition, identification of intervention strategies and selection of regulatory interventions.

Seeking and using evidence from the earliest stages of policy-making may assist both in ensuring that the most appropriate regulatory strategies are used from a health perspective and in enhancing confidence that those strategies will survive a legal challenge. Lessons about the interaction between evidence, law and health are therefore valuable at domestic, regional and international levels in addressing NCD risk factors.

3 International aspects of NCD risk regulation

Part II of this book examines key areas of international law that affect NCD risk factor regulation, as well as offering insights into the inter...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Acknowledgements
• Notes on contributors
• Part I Challenges of Non-Communicable Diseases
• Part II NCD Risk Regulation under International and Comparative Law
• Part III National and Regional Perspectives of NCD Risk Regulation
• Part IV Case Study of a Legal Dispute
• Bibliography
• Index