Caribbean Trade Law: a Prescription for Progress through a Healthy Dose of Regulation
Trade law governs the movement of goods and services across borders, while public health law is concerned with protecting the health of the population, and yet the two seemingly disparate fields are closely intertwined. Todays post is dedicated to highlighting some of the synergies existing between trade law and public health policy, which are increasingly relevant given the non-communicable diseases (NCDs) epidemic which is a growing global concern.
In the Caribbean, NCDs such as obesity, heart disease, and diabetes are closely linked to socioeconomic factors such as poverty and lack of access to quality healthcare, forming a major public health challenge which accounts for 70% of deaths in the region; notably, the Pan American Health Organization (PAHO) has also found that 30% of adults in the Caribbean are classified as obese, and 25% of adults in the region are using tobacco. These figures demonstrate the need for an intersectional and comprehensive strategy to address the public health crisis, and I have recently been involved in a number of initiatives that use trade law to promote public health in Antigua and Barbuda and the Caribbean region as a whole. Attending the Joint meeting on Non-communicable Diseases (NCDs) & Law with the Caribbean Public Health Law Forum and on Health Law Taxes, reminded me of the ways in which trade and industry overlaps inevitably occur when public health measures, like front-of-package labelling, fiscal policies, and marketing regulations are used and I want to share and elaborate on these in today's post for others who may not necessarily notice the supportive role and connections between trade law and public health.
Unpacking the legacy of colonialism on diet
When considering trade interventions to promote public health in small island countries like Antigua and Barbuda and other countries in the global south, the unique circumstances of each country must be taken into account. Diets in the Caribbean are influenced by the remnants of colonial history; in the past, slaves in the Caribbean were forced to eat a diet that was high in carbohydrates and low in nutrients. This diet was designed to give them the energy they needed to work in the fields, but it was not healthy in the long term. After slavery was abolished, many West Indians continued to eat a high carb diet because they could not afford to buy healthier foods, and the consumption of large portions persisted as labourers needed the energy provided to work long hours. Additionally, many people continued to use traditional cooking methods such as frying. Resultantly, the modern West Indian diet is often high in sodium, saturated fat, and sugar, and processed foods are popular due to being relatively cheap and easy to prepare, and therefore friendly to limited incomes. This can make it challenging to promote healthy eating habits in the Caribbean. In addition to this, many small island states have limited domestic food production and are heavily reliant on imports. All of this means that the implementation of some of the policies suggested later in this blog post, such as front-of-package labeling and taxes on unhealthy products, require nuanced and thoughtful approaches.
Promoting public health through trade interventions
The general measures which can be used by a Government to lead to a reduction in consumption of saturated fat, salt, breast milk substitutes, alcohol, tobacco, sugar and Sugar Sweetened Beverages (also called SSBs, which are drinks containing caloric sweeteners such as soft drinks, fruit drinks, punches, ades, and sports drinks), by their population, and to encourage increased intake of fruits and vegetables and an increase in physical activity, involve the following interventions through taxation, restrictions on marketing and certain border control measures which fall within the scope of trade:
Front-of-package labeling systems for pre-packaged foods:
Front-of-package labelling systems, or FOPLs, are symbols on labels at the front of a product which provide customers with clear nutrition-related information so they can make better food choices. Usually either nutritional quality indicators or warning labels, FOPLs are meant to make it simple and quick for customers to recognise pre-packaged food goods that are high in sugar, salt, or saturated fat. In Chile it was found that the introduction of warning labels led to a significant decrease in the purchase of sugary drinks, and another study found that colour-coded labels and warnings through eliciting negative emotion, can change consumers’ perception and nudge them towards more healthy products. Notably, in Latin America, while ten countries (Argentina, the Plurinational State of Bolivia, Brazil, Chile, Colombia, Ecuador, Mexico, Peru, Uruguay and the Bolivarian Republic of Venezuela) have enacted FOPL laws or regulations, only five have come into force. In the Caribbean region, CARICOM states through respective local Standards Bureaus are reviewing the Draft CARICOM Regional Standard for Specification for labelling of pre-packaged foods (DCRS 5:2010) which incorporates specifications for the ‘high-in’ monochromatic octagonal front of package warning label system (OWL).
‘high-in’ monochromatic octagonal front of package warning label system (OWL)
Taxes on unhealthy products:
Taxes on unhealthy foods like sugary drinks, tobacco, and other unhealthy product are a fiscal policy tool that can be used to make these products more expensive and less affordable, influencing individual-level consumption. These can include excise taxes (discriminatory taxes which are applied to specific products), value added taxes (VAT), general sales taxes (GST), and import tariffs, which are indirect taxes that are passed on to the consumer. Taxes on unhealthy products can be particularly effective in reducing consumption in the global south and the Caribbean region, where many people are price-sensitive.
In 2015, Barbados implemented a 10% tax on SSBs, and a year following introduction studies showed a decline in SSB sales and an increase in bottled water sales. Unfortunately, researchers also found that some consumers responded to the levy by purchasing cheaper sugary drinks, but this is useful implementation information which Barbados can use to augment its efforts, and for other countries in the region to take note of when considering the design and implementation of an SSB tax themselves.
Regulating the marketing of unhealthy food and beverages to children:
Children are particularly vulnerable to the marketing of unhealthy foods, so restricting the use of marketing techniques involving cartoon characters and celebrities is another tool for potentially reducing childhood obesity and improving public health. Notably, while studies have found that the prevalence of childhood obesity in the Caribbean is among the highest in the world, I’m not aware of any Caribbean territories with comprehensive policy restricting or prohibiting the advertisement of high-sugar goods and beverages to minors through media channels. However, a 2017 CARICOM Technical Brief did recommend the development of regional guideline to reduce children’s exposure to unhealthy food and beverage advertising through all channels, linked to school nutrition standards and guidelines, in addition to guidelines to reduce in-store promotion of unhealthy food and beverages and radio and television during children’s prime time viewing. The Healthy Caribbean Coalition (HCC) has also launched a Model Policy and Legislative Guidance for Regulating the Availability and Marketing of Unhealthy Beverages and Food Products in and around Schools in the Caribbean.
The World Trade Organisation’s General Agreement on Tariffs and Trade (GATT) allows countries to use trade-restrictive measures to protect human health and this would permit the enactment of policies which limit the marketing of harmful foods and beverages to children, even if these policies have a negative impact on trade, so countries are well within their rights to enact legislation in the that specifically restricts unhealthy food advertisement and marketing to children. As mentioned however, many of the smaller Caribbean territories are dependent on imports for a significant portion of their food and beverage needs, and additionally receive a significant amount of their media content from Western countries. This content often includes advertisements for unhealthy foods and beverages, so this lack of control over advertising is another factor that contributes to the vulnerability of Caribbean territories and LDCs to unhealthy product marketing, and some solutions are proposed in the latter part of this post.
Implementation of the International Code of Marketing of Breast-milk Substitutes:
The World Health Assembly established the International Code of Marketing of Breast-milk Substitutes (ICM) in 1981, and it has been endorsed by over 190 countries. The ICM discourages the promotion and marketing of breast-milk substitutes because this can lead to lower breastfeeding rates, and promotes breastfeeding as the best way to feed infants and young children. This is because breast milk provides nutrients and antibodies, helps to protect infants from infectious diseases, and is associated with a number of long-term benefits for infants and children, including a reduced risk of obesity, type 2 diabetes, and asthma. Breast-milk substitutes by contrast are often high in sugar and unhealthy fats, and may not contain all of the nutrients that babies need despite the way that they are presently marketed. Mothers need support and encouragement to continue breastfeeding, and marketing of breast-milk substitutes can undermine this support, so there has been a recent public health push through the World Health Organization (WHO) and other organizations concerning breastfeeding.
In order to increase the breastfeeding rate and reduce the commercial promotion of breast-milk substitutes, the ICM recommends that countries use legislation to restrict the distribution of free samples of breast-milk substitutes to healthcare workers and pregnant women, ban the use of health professionals to promote breast-milk substitutes, and ensuring that labels on breast-milk substitutes are scientifically accurate and informative.
Balancing affordability and impact
Despite these possible interventions, there remain a a number of challenges that need to be addressed in order for the Caribbean to capitalise on the potential of trade law usage to curb NCDs and buttress public health policy; these include the lack of capacity and human resource in developing countries to design and implement these policies and remedies, and the generation of scientific data and statistics to stand against industry outcry and to ensure that policies translated into legislation are well designed and effective.
Using WTO mechanisms
A WHO status report has found that five billion people globally remain unprotected from harmful trans fat, and with no countries in the Caribbean region implementing legislation which eliminates industrially produced trans fat from national food supplies, the population of the Caribbean is included in these numbers. As a developing region without preventative regulations on trans fat products, Caribbean countries are vulnerable to dumping by companies from other regions that are no longer allowed to sell these products in their own markets.
An unexplored avenue for using trade law to promote public health in the Caribbean would be to challenge trade practices that undermine their public health, through WTO mechanisms such as under the WTO's Anti-Dumping Agreement (ADA) which allows countries to take action against product dumping, including anti-dumping measures, such as tariffs or quotas, on the dumped goods after as case is investigated and determined.
Additional WTO mechanisms which countries may resort to for protection against countries that allow corporations to market unhealthy products in a way that violates international trade rules includes the WTO's Technical Barriers to Trade (TBT) Agreement which allows countries to adopt technical regulations that are necessary to protect human health or safety, and the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which allows countries to adopt measures necessary to protect public health and safety, as well as to prevent consumer deception.
Finding a way forward
To recap, when faced with the major challenge posed by NCDs in the Caribbean and global south, I believe that trade law has the potential to be a powerful tool for promoting public health in the Caribbean and the following interventions can assist in their management and reduction:
Introducing/increasing tobacco product taxes and prices;
Introducing graphic health warning packaging and plain packaging;
Introducing/increasing alcohol and SSB taxes;
Restricting breast-milk substitute product advertising; and
Introducing front of package labelling.
Evidence has shown that health taxes, when well-designed, are an effective way to reduce consumption of unhealthy products and generate revenue which can be redicrected into public health, and organisations such as PAHO, and the WHO recommend the aforementioned measures and have found that tax administration is a key factor for success. It is important to design trade interventions in a way that is mindful of the unique circumstances of each country; for example, in the implementation of an SSB tax, small island developing states who are exploring this avenue may choose to exempt certain staple foods to ensure that the tax does not place an undue burden on low-income households. In order to do this, Governments should also work with various Departments and Ministries including those of Statistics, Consumer Affairs, the Ministries of Trade, Health and Legal Affairs in order to develop national nutrition strategies that sets national targets for reducing the sugar, salt, and fat content of processed foods. This should also be buttressed by educational campaigns and other public health interventions including public awareness campaigns which includes educational materials for parents and children, as well as training for healthcare professionals.
Designing trade interventions that support public health in small island countries requires a holistic approach that considers their specific vulnerabilities and challenges, by designing trade interventions in a way that is mindful of their unique circumstances through tailored policies, international collaboration, and a focus on sustainability and local capacity-building, countries within the global south can promote public health and protect their populations from NCDs, while also minimizing the negative impacts on trade and economic development