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

Abstract

Addressing the global challenge of malnutrition in all its forms will require policy measures to improve food environments, yet progress has been patchy and often slow, particularly for regulatory measures. International trade and investment agreements (TIAs) may limit governments' “policy space” for public health regulation. Constraints have been particularly apparent for public health measures targeting unhealthy commodities, including ultra-processed foods. Challenges and disputes regarding food environment regulation under TIAs (even if successfully defended) can entail significant drain of human and financial resources, and political capital. Lack of awareness or understanding of the implication of TIAs on policy space for regulation can contribute to regulatory chill and policy inertia. Governments lacking capacity to interpret their “legally available” policy space may want to err on the side of caution when there is perceived risk of a formal dispute—even if such threats are unfounded. This paper draws on analysis of literature, trade and investment dispute documentation, and data from inter-disciplinary expert interviews (n = 22) to present a new conceptual framework for the potential impacts of TIAs on policy space for regulating food environments. The analysis that underpins the framework focusses on the key policy domains of fiscal policies, front-of-pack nutrition labeling, restrictions on marketing to children, nutrient limits, and product bans. Analysis indicates that regulatory context and stakeholder influence, policy design, and mechanisms associated with TIA rules and provisions intersect in ways contributing to policy space outcomes. This new framework can provide a basis for rapidly assessing policy coherence between TIAs and food environment regulations in these domains. It can also be used to identify areas where further legal analysis would strengthen the development and defense of regulatory proposals. The framework may be applied to nutrition regulation more broadly, given the common themes that emerged across the different domains due to common interests of stakeholders, notably the food industry. It thus provides a basis for analyzing the political economy of regulation to address the commercial determinants of health in relation to unhealthy food and beverages.

Food Policy Coherence and Integration: a review of adopted methodologies

“…Health and nutrition policy and Trade policy are in the second cluster, as the impacts of trade agreements on nutritional behaviour have been widely studied in the literature (Baker et al, 2019;Battams and Townsend, 2018;Friel et al, 2019;Garton et al, 2022;Ruckert et al, 2017;Thow et al, 2016Thow et al, , 2018. The need to study PCI between trade and nutrition policies emerged from the urgence to analyse the effects of Western countries policies on developing countries populations' health.…”

“…Ruckert et al (2017) carried out a Health Impact Assessment (HIA) to define how regional trade agreements at global level can hinder the implementation of health and nutritionrelated SDGs. Similarly, the other studies focused on the interplay between trade and nutrition policies in specific case studies, often finding inconsistencies (Battams and Townsend, 2018;Friel et al, 2019;Garton et al, 2022;Ruckert et al, 2017;Thow et al, 2016Thow et al, , 2018.…”

“…Two frameworks borrowed from political sciences also allowed for a process-focused analysis of PCI: the Policy Pathways approach and Policy Space analysis (Friel et al, 2019;Garton et al, 2022;Thow et al, 2016). The Policy Pathways approach applied by Friel et al (2019) identified the pathways from trade to diet-related disease risks, leading to various degrees of policy (in) coherence.…”

“…They found that formal and informal mechanisms exist in the governance of trade for nutrition goals, but that in both cases the key element is the issue of power imbalance that leads to the prioritisation of trade goals over nutrition ones (Friel et al, 2019). Garton et al (2022) focused on the nutrition Policy Space (i.e. scope), examining how Trade and Investment Agreements (TIAs) could hinder the implementation of better nutrition policies.…”

A review of international trade and investment agreements and nutrition policy space in the Pacific

“…In the past decade scholars have debated the potential constraints arising from TIAs and WTO obligations for nutrition policy in the Pacific. The principles of non-discrimination, necessity and justification, market access requirements and quantitative restrictions, intellectual property rights and ‘fair and equitable’ treatment of investors may restrict the development and implementation of healthy nutrition policies that regulate food environments ( 16 , 17 ). While few studies have directly assessed the potential legal constraints of TIAs on nutrition policy in SIDS, Ravuvu et al noted several trade obligations in Fiji relating to potential restrictions of the government’s policy space ( 18 ).…”