Implications of international trade and investment agreements on policy space for restricting marketing of unhealthy food and beverages to children: lessons from inter-disciplinary expert interviews

Abstract

Objective: To determine the implications of international trade and investment agreements (TIAs) for national governments’ policy space to restrict the marketing of unhealthy food and beverages to children. Design: In-depth interviews based on a series of policy scenario ‘vignettes,’ guided by an adapted scenario analysis methodology. Setting: Global Participants: Nine key informants from relevant sectors, with expertise regarding the intersection of public health nutrition policy, international trade law, and international investment law. Results: Participants consistently identified the relevance of several principles, common to many TIAs: non-discrimination, necessity and justification, market access requirements and quantitative restrictions, intellectual property rights and trademark protections, and fair and equitable treatment of investors. Two main policy design factors that interact heavily with TIA-related policy space were the framing of objectives, and regulatory distinctions drawn. Contextual factors may shape the analysis of TIA-related policy space on a case-by-case basis, while the relative power of the actors and institutions involved in both domestic and international policy spheres may influence whether and how such legal constraints to policy space are activated. Conclusions: Regulatory marketing restrictions run the risk of incurring challenges under World Trade Organization (WTO) agreements and other free trade and investment agreements. However, concerned policy makers should be aware of the difference between theoretical risk, threat of a challenge, and realistic initiation and/or loss of a formal dispute. Our findings indicate that there is policy space to adopt significant marketing restrictions, though an understanding of these legal risks, and strategic policy design, are important.

Overpromoted and underregulated: National binding legal measures related to commercially produced complementary foods in seven Southeast Asian countries are not fully aligned with available guidance

“…Both CPCF confectionary and beverages provide little beneficial nutrition aside from energy from sugar and are often very sweet, posing risks to dental health and contributing to a preference for sweet tastes in older IYC (WHO, 2015 , 2019 ). The concept of prohibiting promotion of food products is relatively new and is well recognized as being complex, likely to be contested by the food industry (Garton et al, 2021 ; Sing et al, 2022 ) and requiring strong capacity for monitoring and enforcement by governments. Countries, however, are increasingly passing restrictions on the promotion of food and drinks high in fat, sugar and salt (Correa et al, 2020 ; Lee et al, 2017 ; Taillie et al, 2019 ; Watt et al, 2020 ).…”

The interface between international trade and investment agreements and food environment policymaking: A conceptual framework

“…This analysis was carried out for a hypothetical country context, incorporating discussions of how different contextual factors might influence policy space outcomes. The methods of the policy scenario analysis vignette study are further elaborated in a separate publication (Garton et al, 2021b).…”

“…This draws upon the initial realist review framework which outlined the key contexts, mechanisms, and oucomes (C-M-O) (Garton et al, 2021a). It incorporates TIA mechanisms representing potential substantive, procedural or structural food environment policy space constraints (adapted from Fidler et al) examined in policy scenario vignette interviews (Fidler et al, 2006;Garton et al, 2021b). It adds elements of the Advocacy Coalition Framework of competing advocacy coalitions in the policy subsystem (and their respective interests, beliefs, power/resources, and strategies) (Sabatier and Weible, 2007;Garton et al, 2021c).…”

Who influences nutrition policy space using international trade and investment agreements? A global stakeholder analysis

“…Semi-structured interviews focused on three key nutrition policy areas: front-of-pack nutrition labelling, restricting marketing to children, and nutrient content limits. Interview scripts were structured as 'vignettes' to explore potential policy space outcomes based on a series of changing regulatory scenarios, an example of which is published elsewhere [36]. All responses pertaining to actors, stakeholders, relationships, power dynamics, and agency in TIA mechanisms of influence on nutrition policy space were collected and included in this stakeholder analysis.…”