There is increasing recognition that the law provides significant opportunities to improve the environment in which we live and thus help prevent non-communicable diseases (NCDs). However, the opportunities that the law offers can only be maximized if the constraints which the law imposes on policy makers are understood and adequately taken into account at all stages of the policy process. After presenting the regulatory responses that the international community has urged States to adopt as part of effective NCD prevention strategies, this chapter considers the industry-led challenges anchored in international trade law that States have faced when regulating the tobacco, alcohol and food industries. It then focuses on the potential of international human rights for the NCD prevention agenda, before highlighting some practical considerations that should be borne in mind when building legal capacity in this field.
Alberto Alemanno and Amandine Garde
Oliver Bartlett and Amandine Garde
Alcohol consumption is both a heavily-embedded cultural tradition in European States as well as a persistent source of non-communicable diseases with significant knock-on consequences for public health. Oliver Bartlett and Amandine Garde assess several areas of the EU’s involvement in alcohol policy: Member States’ alcohol policies and their international health context; the Court of Justice of the EU’s discussion of these measures in the context of free movement of goods rules; and the EU’s specific policies on alcohol. The contrast with EU tobacco policy is stark. The EU Commission has failed to rely sufficiently on evidence when making policy, and the CJEU has not fully captured the complexity of interests taken into account by Member States.
Amandine Garde and Seamus Byrne
Garde and Byrne explore the tension between children’s rights and the economic ‘rights’ of corporations. Specifically, they argue that the best interests of the child principle, enshrined in Article 3(1) CRC, provides a potent legal hook upon which States can uphold the child’s right to health by modifying their food environments and therefore contribute to the prevention of obesity. They explore how the best interests principle can exert significant legal traction regarding the imposition of marketing restrictions of unhealthy food to children by highlighting the need for states to specifically determine, firstly, what is in the child’s best interests, before assigning it its due weight when assessing it against competing interests. In particular, they argue that the more systematic use of the best interests of the child principle would help to moderate legal claims throughout the policy process and could support strategic litigation in the interests of public health.
Joshua Curtis and Amandine Garde
The concluding chapter to the book first recaps and then draws together the main emergent themes running through the book as a whole, which play out in the space between two core intentions animating the law in this field - to construct and protect a specific type of economic system and to establish and protect fundamental universal human rights. The themes discussed include legal fragmentation, legal capacity building and interdisciplinarity integration of the evidence-base into law and policy, and the broad potential of human rights law. Each theme poses a set of challenges, to which solutions are indicated. The last half of the chapter applies the thematic discussion and lessons learned to the possible development of a Framework Convention on Obesity Prevention, exploring how such a process may overcome the challenges identified and contribute to more harmonious international law and governance systems.
Amandine Garde and Brigit Toebes
Of all WHO regions, Europe has the highest prevalence of tobacco smoking among adults and some of the highest prevalence of tobacco use by adolescents. Smoking therefore remains a major public health concern in the European region, which poses significant questions from the perspective of law, policy and human rights. This chapter addresses whether there is a human rights approach to tobacco control in Europe, looking at the Council of Europe and the EU. There are both differences and synergies between both organizations. While the Council of Europe has not adopted any tobacco control policy or strategy, the EU has adopted a number of tobacco control rules, in particular the Tobacco Advertising Directive and the Tobacco Products Directive. When it comes to addressing human rights specifically, the chapter concludes that there is no comprehensive and unified European human rights approach to tobacco control. Yet there are synergies, where both the ECtHR and the CJEU are very reluctant to uphold claims based on freedom of expression when challenges are mounted against tobacco advertising legislation. Furthermore, the ECtHR has clearly recognized that exposure to SHS falls within the remit of Articles 2, 3 and 8 ECHR. The CJEU, along similar lines, sees the protection of public health as a decisive factor, thus implicitly protecting the right to health.
Amandine Garde, Joshua Curtis and Olivier De Schutter
The introductory chapter sets the scene in the field of childhood obesity prevention, addressing the global rise of this ever more acute public health challenge and the response to date at national and international levels. The nature and importance of the specific legal challenges involved in childhood obesity prevention are sketched out, providing a coherent conceptual backdrop to the book as a whole. Finally, the structure of the book is explained, and the individual chapters are outlined. The book is intended to complement, combine and drive forward existing literature on the relationship between obesity prevention and international economic law, on the one hand, and obesity prevention and human rights law, on the other. It contributes to ongoing efforts to build legal capacity to address childhood obesity more specifically, hopefully aiding increased and more productive communication between legal and public health professionals and other actors in this important field.