Trade challenges at the World Trade Organization to national noncommunicable disease prevention policies: A thematic document analysis of trade and health policy space

Abstract

BackgroundIt has long been contested that trade rules and agreements are used to dispute regulations aimed at preventing noncommunicable diseases (NCDs). Yet most analyses of trade rules and agreements focus on trade disputes, potentially overlooking how a challenge to a regulation’s consistency with trade rules may lead to ‘policy or regulatory chill’ effects whereby countries delay, alter, or repeal regulations in order to avoid the costs of a dispute. Systematic empirical analysis of this pathway to impact was previously prevented by a dearth of systematically coded data.Methods and findingsHere, we analyse a newly created dataset of trade challenges about food, beverage, and tobacco regulations among 122 World Trade Organization (WTO) members from January 1, 1995 to December 31, 2016. We thematically describe the scope and frequency of trade challenges, analyse economic asymmetries between countries raising and defending them, and summarise 4 cases of their possible influence. Between 1995 and 2016, 93 food, beverage, and tobacco regulations were challenged at the WTO. ‘Unnecessary’ trade costs were the focus of 16.4% of the challenges. Only one (1.1%) challenge remained unresolved and escalated to a trade dispute. Thirty-nine (41.9%) challenges focussed on labelling regulations, and 18 (19.4%) focussed on quality standards and restrictions on certain products like processed meats and cigarette flavourings. High-income countries raised 77.4% (n = 72) of all challenges raised against low- and lower-middle–income countries. We further identified 4 cases in Indonesia, Chile, Colombia, and Saudi Arabia in which challenges were associated with changes to food and beverage regulations. Data limitations precluded a comprehensive evaluation of policy impact and challenge validity.ConclusionsPolicy makers appear to face significant pressure to design food, beverage, and tobacco regulations that other countries will deem consistent with trade rules. Trade-related influence on public health policy is likely to be understated by analyses limited to formal trade disputes.

International Trade and Investment Agreements as Barriers to Food Environment Regulation for Public Health Nutrition: A Realist Review

“…[68][69][70][71][72][73] Policy postponed (2008), significantly modified/compromised version implemented in 2013. [74][75][76] Samoa Import ban on turkey tails (implemented 2007)…”

“…[82][83][84][85][86][87][88][89][90][91][92] Policy modified, delayed until 2019. 75,76 No evidence of an update at time of analysis (2020). Other: lack of scientific evidence on nutrient thresholds, lack of cost-benefit analysis, consumer misleading, coverage of more foods and products than notified to WTO STCs raised (14 times).…”

Increasing the public health voice in global decision-making on nutrition labelling

“…While it is rare within the WTO system for matters to escalate to formal disputes, even threat of such challenges creates a barrier to policy innovation beyond Codex's baseline, particularly in lowresource settings [6]. Such challenges can delay or weaken proposed public health regulations [19]. As a result, the decisions made in Codex regarding guidance on FoP nutrition labelling are likely to have a significant influence on national decision making on this issue.…”

PMI’s proxy trade dispute with Thailand

“…What these varied cases have in common is an underlying industry strategy of using trade and investment treaties to oppose or block public health protections, either directly or indirectly. Previous analysis has shown that lengthy and expensive legal challenges (even when unsuccessful in themselves) create a chilling effect16 17 which may cause governments to ‘dilute, delay or abandon proposed regulation in order to avoid potential trade or investment disputes, and associated costs, that may be threatened by aggrieved corporate actors’ 18…”