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Plain packaging of unhealthy products: WTO and the global governance of Public Health

WTO conference

This Wednesday and Thursday I will be taking part in the 15th Annual WTO Conference “The WTO at 20: Taking Stock and Challenges Ahead”, organised by the British Institute of International and Comparative Law, the Institute of International Economic Law at the Georgetown University Law Center, and the Society of International Economic Law. The conference will take place at the London House, Goodenough College, Mecklenburgh Square, Bloomsbury, London. My presentation is entitled ‘Plain packaging of unhealthy products: WTO and the global governance of Public Health’.

Here is the abstract:

All over the world, Public Health agencies are dedicating their attention to the prevention of overweight and obesity. Since market forces tend to promote over-consumption and unhealthy habits, governmental intervention is thought to be necessary. The Law is now firmly established as a mighty tool of Public Health. Legislators worldwide have discussed measures to reduce weight-related problems, to educate individuals and influence their decisions. Those measures include public information campaigns, disclosure rules, advertising restrictions, taxation of unhealthy foods and even food prohibitions. Some of these actions have been confronted with resistance from citizens, public interest organizations and producers.

Regulation of the advertising of food is one of the policy tools most regularly proposed to restrain unhealthy patterns. Some authors support restrictions on the advertising of certain foods such as fast-food, snack, and soda products. Given the prominent role played by the presentation of products, some propose extending the regulation of unhealthy products to product packaging. Companies tend to present their goods in such a way as to induce consumers to make purchase decisions. Packaging is often the means to communicate such messages to prospective purchasers through trademarks, logos, colours, designs, etc. As a result, more and more regulators and policy makers around the world have started targeting the packaging of products perceived to be harmful to people’s health. Whilst regulations aimed at prohibiting misleading packaging practices have existed for decades in order to limit unfair competition, the focus of the regulatory interventions on packaging practices is now shifting to another policy goal: that of limiting the consumption of products which are perceived as unhealthy. Thus far, legislation on plain packaging has been passed or proposed with reference to tobacco products. Yet there are speculations that plain packaging legislation may, in the near future, spread to other products perceived to be harmful, such as alcohol and unhealthy products. The purpose of this paper is to discuss a possible extension of the plain packaging strategy to unhealthy products. Our aim is to address the following questions:

– Would such a measure be justified? Regulatory actions have restricted the freedom of tobacco, alcohol and food companies to produce, present, advertise and supply their products as they wish, limiting their commercial freedom. Yet, such measures are considered by many governments and international and non-governmental organisations as necessary to protect public health. Is it really the case? Is this intervention proportional or paternalistic?

What types of problems would be raised by such a regulatory intervention? The plain packaging strategy has been adopted in Australia regarding tobacco products, facing resistance from the industry who claimed that it breaches WTO rules and investment protection provisions of international trade treaties regarding intellectual property rights and trademarks. What are the lessons to learn from the tobacco case? Would plain packaging of unhealthy products raise the same problems, or new ones?

Would it be efficient? Some studies indicate that plain packaging has the potential to make a significant impact on smoking rates. Would it also be effective regarding unhealthy products? Regulation may be used as an instrument to promote healthier lifestyles. However, there are many differences between tobacco and unhealthy products. Any regulatory intervention in this respect should take into account the different causes for the obesity problem and attempt to address them in a coherent manner.

– What role (if any) should the WTO play? Having lost domestic lawsuits against Australia on plain packaging of cigarettes, the industry is now taking its case to the WTO. A decision against plain packaging there might have a chilling effect not only on tobacco regulation, but more broadly on the use of this type of regulation in the fight against unhealthy products. How will the outcome of the tobacco case affect a potential extension of the plain packaging strategy to unhealthy products?


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