International codes and agreements to restrict the promotion of harmful products can hold lessons for the control of alcohol marketing

Abstract

Background and aims The 2011 UN Summit on Non-Communicable Disease failed to call for global action on alcohol marketing despite calls in the World Health Organization (WHO) Global Action Plan on Non-Communicable Diseases 2013-20 to restrict or ban alcohol advertising. In this paper we ask what it might take to match the global approach to tobacco enshrined in the Framework Convention on Tobacco Control (FCTC), and suggest that public health advocates can learn from the development of the FCTC and the Code of Marketing on infant formula milks and the recent recommendations on restricting food marketing to children. Methods Narrative review of qualitative accounts of the processes that created and monitor existing codes and treaties to restrict the marketing of consumer products, specifically breast milk substitutes, unhealthy foods and tobacco. Findings The development of treaties and codes for market restrictions include: (i) evidence of a public health crisis; (ii) the cost of inaction; (iii) civil society advocacy; (iv) the building of capacity; (v) the management of conflicting interests in policy development; and (vi) the need to consider monitoring and accountability to ensure compliance. Conclusion International public health treaties and codes provide an umbrella under which national governments can strengthen their own legislation, assisted by technical support from international agencies and nongovernmental organizations. Three examples of international agreements, those for breast milk substitutes, unhealthy foods and tobacco, can provide lessons for the public health community to make progress on alcohol controls. Lessons include stronger alliances of advocates and health professionals and better tools and capacity to monitor and report current marketing practices and trends.

Trade law and alcohol regulation: what role for a global Alcohol Marketing Code?

“…The scope and content of any Alcohol Marketing Code would necessarily be the subject of negotiations between the parties. However, the Breast-milk Substitutes Code and the FCTC, as instruments concerned with the marketing of consumer goods, and the WHO Global Strategy to Reduce the Harmful Use of Alcohol [16], which proposes policy options and interventions to target harmful alcohol use that include marketing restrictions [9], offer some guidance as to the kinds of measures that might be recommended.…”

“…However, where a respondent Member fails to implement an adverse ruling, the complainant Member may ultimately take retaliatory measures in the form of 'suspension of concessions' [24]. 8 These flexibilities can be by way of explicit exceptions, such as in GATT Article XX and GATS Article XIV, or be built into the substantive provisions, such as in the TBT Agreement Article 2.2. measure (on an objective basis), 9 whether the measure is 'necessary' 10 to protect human health and whether the government has struck the right balance between the negative impact on trade and the health objective of the measure. 11 These questions about the necessity and proportionality of a particular measure, both at law (de jure) and in practice (de facto), are critical to understanding the key issues facing public health policymakers in the trade law environment [25][26][27].…”

“…In 2004, the same court found that French legislation prohibiting the advertising of alcoholic beverages that resulted from television broadcasting of binational sporting events held in other Member States was in breach of market access commitments for services, but was also proportionate to the public health objectives it sought to achieve [35]. Furthermore, in 2009, the Norwegian Supreme Court, in applying an 9 See, for example, GATT Article XX/GATS Article XIV preamble which states that 'measures are not [to be] applied in a manner which would constitute a… disguised restriction on international trade'. 10 See, for example, GATT Article XX(b)/GATS Article XIV(b) which states that 'nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures… necessary to protect human, animal or plant life or health'.…”

“…The success of the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) [1] in securing widespread tobacco control activity in the developed and developing world [2] has spurred consideration of the benefits of similar international instruments in other public health areas, particularly those aimed at addressing the 'global epidemic' [3] of non-communicable diseases [4][5][6]. In light of the challenges brought against tobacco control measures under international trade agreements 1 [7,8], it should be unsurprising that health policymakers are keen to ensure policy space for other preventative public health measures in the vast and ever-expanding trade law environment [9]. As noted by Landon et al in this Supplement, a non-binding code of practice on alcohol control, focused potentially on alcohol marketing (Alcohol Marketing Code), is one such instrument being proposed [5,6].…”

“…International health agreements are invaluable resources for policymakers seeking to develop public health measures and have 'the capacity to significantly inform the way in which trade and investment treaties… are interpreted and applied' [9,10]. They do not, however, offer a panacea to the possibility of litigation of public health measures under international trade rules [11].…”