'Nutrition labelling is a trade policy issue: lessons from an analysis of specific trade concerns at the World Trade Organization' by
Anne Marie Thow, Alexandra Jones, Corinna Hawkes, Iqra Ali and Ronald Labonté in (2017)
Health Promotion International 1-11 comments
Interpretive nutrition labels provide simplified nutrient-specific text and/or symbols on the front of pre-packaged foods, to encourage and enable consumers to make healthier choices. This type of labelling has been proposed as part of a comprehensive policy response to the global epidemic of non-communicable diseases. However, regulation of nutrition labelling falls under the remit of not just the health sector but also trade. Specific Trade Concerns have been raised at the World Trade Organization’s Technical Barriers to Trade Committee regarding interpretive nutrition labelling initiatives in Thailand, Chile, Indonesia, Peru and Ecuador. This paper presents an analysis of the discussions of these concerns. Although nutrition labelling was identified as a legitimate policy objective, queries were raised regarding the justification of the specific labelling measures proposed, and the scientific evidence for effectiveness of such measures. Concerns were also raised regarding the consistency of the measures with international standards. Drawing on policy learning theory, we identified four lessons for public health policy makers, including: strategic framing of nutrition labelling policy objectives; pro-active policy engagement between trade and health to identify potential trade issues; identifying ways to minimize potential ‘practical’ trade concerns; and engagement with the Codex Alimentarius Commission to develop international guidance on interpretative labelling. This analysis indicates that while there is potential for trade sector concerns to stifle innovation in nutrition labelling policy, care in how interpretive nutrition labelling measures are crafted in light of trade commitments can minimize such a risk and help ensure that trade policy is coherent with nutrition action.
The authors argue
This analysis of Specific Trade Concerns raised in the TBT Committee over the past decade–and particularly since 2013–underscores the need to consider public health nutrition labeling interventions also as trade policy interventions. Nutrition labelling for public health purposes has been consistently identified in discussions in the WTO TBT Committee as a legitimate policy objective. However, queries have been raised regarding the justification of the specific labelling measures proposed, and the scientific evidence for effectiveness of such measures. Concerns have also been raised regarding the consistency of the measures with international standards.
Our analysis should also be considered in the light of the political economy of trade. WTO disputes regarding trade and tobacco have indicated that concerns regarding compliance with WTO Agreements are also influenced by economic and political interests. For example, in the case of plain packaging of tobacco, formal disputes were raised regarding WTO compliance, even though legal analyses indicated that the legislation was formally compliant with global trade law (Mitchell, 2010; Jarman, 2013). Other observers have noted the use of trade and investment disputes to undermine and/or stall tobacco control legislation (Lencucha and Drope, 2015). This has significant relevance to nutrition, where the processed food industry is a significant political actor and has been seen to lobby effectively against mandatory labelling (Mandle et al., 2015). In addition–and unlike tobacco–there is no international convention or specific standard regarding nutrition labelling for NCD prevention. In this context, there is thus an imbalance between the strong global policy norms regarding trade (economic interests) and weak global policy norms regarding nutrition policy.
Theories of policy learning can help to reframe policy challenges as opportunities, by highlighting considerations relevant to other jurisdictions or other times (Rose, 1993). Hall’s theory of social learning highlights key issues influencing learning as framing, the context in which policy makers work, and the importance of policy design (Hall, 1993). We identified four lessons for public health policy makers that arise from this analysis of discussions in the TBT Committee: to frame the policy objectives strategically, in relation to the necessity of the measure; to strengthen policy processes in ways that pro-actively identify potential trade issues; and to minimise (where possible) potential trade restrictiveness, or what was referred to in the TBT Committee discussions as ‘practical’ concerns; and to engage with the Codex Alimentarius Commission processes to develop international guidance on interpretative labelling.
First, strategic framing of the policy objectives to align clearly with the policy settings can assist in demonstrating the necessity of the measure. Although the ‘legitimate objective’ of protecting human health should be invoked, it is essential that the objective of the measure is defined in relation to how the measure will address the specific problem, because the policy objective defines the evidence required to establish necessity. For example, if a mandatory nutrition labelling measure is stated to pursue an objective of providing consumers with nutrition information in a more understandable format, then a challenging member would need to show there are less trade restrictive alternatives that would equally fulfil this aim. Previous disputes highlight the high threshold applied to this test. Where an alternative means of achieving the objective entails greater ‘risks’ that the objective will not be fulfilled, this will not be considered a valid alternative, even if it were less trade restrictive (WTO, 2011). In contrast, where a measure is framed as pursuing a broader objective of reducing the burden of obesity or NCDs, this opens potential scope for a complainant to propose a wider variety of measures that may achieve this aim.
This suggests that objectives need to be framed in relation to the first point of impact of the measure, which is usually provision of understandable information (Figure 1). Evidence to justify the measure would then focus on: best available current advice on healthy consumption levels (either a country’s own daily recommended levels, or some internationally accepted advice), clarity and accuracy of messaging (regarding the need for ‘interpretive’ labelling), and understanding by consumers with limited literacy (again the need for ‘interpretive’ labelling). It will also be important to explicitly cite the precautionary principle in response to queries regarding ‘science’ and ‘scientific justification’ for these novel and innovative policy measures that have little ‘in situ’ evidence for their effect. It would also be ideal to include plans for evaluation to contribute to the state of knowledge regarding effectiveness of interpretive labelling.
In relation to this, it is also important that interpretive labelling measures be framed as part of a comprehensive policy response to nutrition-related chronic disease alongside components such as education programs, minimizing the opportunity to suggest these are available as ‘less trade restrictive alternatives.’ It is notable that in previous disputes, an alternative measure has not been considered ‘reasonably available’ where it is more properly considered part of a suite of complementary measures intended to act in concert with the mandatory interpretive nutrition labelling requirements at stake (WTO, 2007a).
Second, the findings suggested benefits of pro-active engagement with trade policy makers at early stages of policy design. In particular, this would help to identify appropriate points and avenues for notification and practical issues of WTO compliance, such as allowing sufficient time for notification and implementation. It may also help to identify any easily resolvable trade concerns before a draft is notified.
Third, the findings highlighted opportunities to reduce trade restrictiveness without compromising on core public health elements of label design. For example, it may be possible to make implementation less burdensome through the use of stickers and graduated implementation timeframes. Early consideration of the practicalities of implementation, such as the issue related to package size identified in the discussion, may also reduce trade-restrictiveness. Although the voluntary nature of the measures cited as alternatives from Australia, Switzerland and the EU means that they may not be directly comparable to these mandatory measures, there is potential to draw on other features of their design. For example, in Australia, the high level policy statement which guided development of a front-of-pack labelling system establish at the outset that such a system is not a stand-alone strategy, but fits within the context of broader health strategies, including explicit recognition of its role in supporting the Australian Dietary Guidelines and its consistency with existing Nutrient Reference Values. Eight aims of the scheme are outlined, drawing on evidence of its potential impact on both consumer understanding and improving the food environment through driving reformulation (Australia New Zealand Food Regulation Ministerial Council).
Fourth, one of the key issues raised by the discussions in the TBT Committee is whether ‘relevant’ international standards currently exist. As described, Codex Alimentarius leaves room for interpretive labelling but doesn’t provide guidance regarding details. Codex establishes ‘minimum standards’ for food safety–providing a ‘floor’ for governments to draw on in ensuring food safety, while allowing for differing levels of protection and innovation to meet emerging challenges (Cosbey, 2000). In contrast, the emphasis on harmonization and minimizing trade restrictiveness in the TBT Agreement suggests the need for specific guidance for measures. Previous disputes have arisen in situations such as this, where scientific evidence suggests that a measure stronger than existing international standards is advisable to protect human health based on the precautionary principle (Turvey and Mojduszka, 2005). This tension is reflected in the apparent confusion evident in the TBT discussions about whether a relevant standard exists. This suggests a need for development of international guidance regarding evidence and use of interpretive nutrition labelling. Ideally, this would be explicitly framed as a baseline (rather than a ceiling), which would enable it to serve as a reference point for national action, while enabling innovation.
The requests for justification regarding interpretive nutrition labelling measures in the TBT Committee raise the question of whether trade sector concerns might stifle innovation in nutrition labelling policy. Regulatory chill in public health stemming from trade concerns, a situation in which governments hesitate to implement new policies or legislation, has been well documented (Tienhaara, 2011). Voluntary approaches to labelling were repeatedly identified as an ‘alternative’ to these mandatory interpretive labelling measures discussed in the TBT Committee. This suggests that a specific area where regulatory chill may be likely to result is in the adoption of voluntary rather than mandatory approaches to interpretive nutrition labelling. This potential for regulatory chill would only be enhanced by the preference of the food industry for voluntary approaches (Mandle et al., 2015). However, strong rationales for mandatory approaches remain. For example, voluntary approaches may have limited long term effectiveness, due to disincentives to participate resulting from costs accruing to only compliant companies (in the form of implementation costs and perhaps market share) (Roe et al., 2014).
Overall, however, this analysis of discussions in the TBT Committee indicates that there is significant policy space at the international level for innovation in interpretive nutrition labelling policy, and has highlighted opportunities to strengthen nutrition labelling measures at both the international and national level. This policy space may not preclude a dispute or a ‘chill’, since the behaviours of corporations and governments are not fully predictable; but care in how interpretive nutrition labelling measures are crafted in light of trade concerns can minimize such a risk and help ensure that trade policy is coherent with nutrition action (Hawkes, 2015).
