Ad bans, labelling and taxes: exploring the intersection of law and public health in global efforts to prevent obesity

Wednesday 30 October, 2013
by Alexandra Jones and Laura Perriam

What are the bases for developing and implementing laws for obesity prevention? Which levels of government are responsible? What is the role for public health evidence? And how can public health advocates respond to the efforts of opponents of legal approaches who simultaneously overplay gaps in evidence, the limits of legal authority, and technical barriers, with a view to delaying or stalling the use of law?

It's no secret obesity has now reached epidemic proportions globally: according to WHO, at least 2.8 million people die annually as a result of being overweight or obese. Once associated with high income countries, obesity is now prevalent in low and middle income countries, many of which face a ‘double burden' of disease as they continue to deal with the problems of infectious disease while experiencing a rapid upsurge in risk factors for noncommunicable diseases. Excess body fatness is linked to an increased risk of common cancers including those of the breast, colorectum, oesophagus, pancreas, gallbladder, endometrium and kidney, as well as other chronic diseases including type 2 diabetes. Evidence also indicates that maintaining a healthy bodyweight reduces the risk of death from all NCDs collectively by around 22 percent.

The benefits of prevention are clear, with potential gains to be made not only in health and longevity, but also in reduction of health inequities, and in controlling spiralling healthcare and associated costs. As a component of the accelerating global NCD agenda, governments have begun to pay increasing attention to obesity prevention though documents such as the recent WHO Global Action Plan for Prevention and Control of NCDs, which reinforced and reiterated 2004's WHO Global Strategy on Diet, Physical Activity and Health. Despite increasing recognition of the problem, and the menu of evidence-based policy options provided by these instruments, progress on key regulatory policies remains disappointingly slow. Industry self-regulation and public-private partnerships have yet to demonstrate positive outcomes for public health, yet promising legal interventions have not been implemented in their place.

Substantial political and philosophical barriers to legal interventions remain. In contrast to Australia's progress on tobacco control components of the global NCD agenda, the latest statistics show that Australians are increasingly overweight or obese with minimal regulation in place to stem this growing health problem. This inertia is in place the world over, with opponents of legal approaches often simultaneously overplaying gaps in the evidence, and overstating the limits of legal authority and technical barriers, with a view to delaying or stalling the use of law.

Barriers to effective legislative implementation are highlighted globally by high-profile examples: from Bloomberg's attempted New York soda size restrictions to Denmark's world-first tax on food products containing more than 2.3% saturated fats. While the former is still being contested in the US Court System, the latter was repealed after just one year amid food industry lobbying, notwithstanding a recently released independent review which suggested it did in fact lead to a drop in consumption of saturated fats by between 10-15%. The Mexican President has recently proposed a sugar soft-drink tax in an attempt to address rapidly accelerating rates of obesity and type 2 diabetes in that country. Industry opposition is in full swing. Not only do these challenges bear implications for the jurisdictions involved, they contribute to a possible ‘chilling' effect in other jurisdictions, deterring them from implementing similar and potentially effective measures.

Despite these challenges, the risks of continued inaction are too great to ignore.

Last week World Cancer Research Fund International (WCRF) released a working paper: Law and Obesity Prevention: Addressing Key Questions for the Public Health Community.  The Paper builds on work presented at the McCabe Centre's workshop, Using The Law Effectively For Cancer Control in Europe, hosted in partnership with the Norwegian Cancer Society in March 2013.

The paper's key findings include recognition that most food policy actions to address obesity are in some way amenable to the use of legal mechanisms for implementation. While specific legal powers vary across jurisdictions, governments possess significant capacity to implement measures such as marketing restrictions, labelling requirements, and taxes and subsidies. In addition to underlining the considerable scope for using law to regulate unhealthy diets, the paper explores potential obstacles and barriers, including challenges to legal authority, and the influence of industry evident in the New York and Danish examples. As current examples from the tobacco context highlight, governments must navigate the process of policy development not only in light of potential barriers domestically, but also in the context of their obligations within existing international trade and investment agreements. Recognising that the operation of these agreements can be complex and highly nuanced, the paper calls for closer engagement of legal and public health communities to ensure the impact of these agreements is better understood, and the ongoing regulatory autonomy of states to regulate in the interests of protecting human public health is better utilised. Finally, the paper explores the critical role of evidence at all stages: from building the case for using law; informing the definition of clear legislative objectives; and resisting legal challenges when they occur.

With WHO ranking overweight and obesity as the fifth leading risk for global deaths, now is the time to act. The paper calls on the public health and legal communities to better collaborate in order to:

  • Establish the legal basis for the action at the outset;
  • Use available evidence to help frame the objectives of law and ensure it is defensible if challenged; and
  • Overcome barriers to the use of law, at all levels, including through a better understanding of relevant legal bases for action.

The McCabe Centre is pleased to have been involved in the development of the WCRF working paper.

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