DEJUSTICIA - Law, Trade, and Nutrition Labeling - Reflections and Experiences from Latin America

LAW, TRADE, AND

NUTRITION LABELING: REFLECTIONS AND EXPERIENCES FROM LATIN AMERICAResumen La situación de sobrepeso y obesidad es uno de los asuntos más urgentes en la agenda de salud global. América Latina es una de las regiones que reportan un alto consumo de bebidas azucaradas y productos ultraprocesados, lo que hace a su población más vulnerable frente a enfermedades no transmisibles ( ENT). Con el fin de promover ambientes alimentarios y hábitos de consumo más saludables, la OMS y la OPS le han recomendado a los Estados que adopten un conjunto de medidas, dentro de las que se encuentra la adopción de un etiquetado nutricional de advertencia basado en la mejor evidencia científica disponible.

Distintos países de la región como Chile, México y Perú han adoptado el modelo de sellos de advertencia octagonal, que ha mostrado, además, su efectividad. Sin embargo, su adopción en estos y otros países de la región no ha sido fácil. La industria de ultraprocesados comestibles se ha opuesto a este modelo con argumentos que pasan por lo econó - mico, lo político y, también, lo jurídico. En particular, frecuentemente se ha argumentado que esta medida vulnera los acuerdos internacionales en materia económica, pese a que la normativa internacional permite excepciones legítimas en favor de la salud pública. Esta publicación busca aportar al debate sobre la adopción de un etiquetado nutricional desde dos perspectivas. De un lado, desde una perspectiva legal, los autores reflexionan sobre los principales argumentos que se exponen en contra de esta medida de salud pública y aportan argumentos del derecho internacional para contestarlos. De otro lado, desde una perspectiva vivencial, los autores ofrecen un recuento de cómo lograron

sobre los principales argumentos que se exponen en contra de esta medida de salud pública y aportan argumentos del derecho internacional para contestarlos. De otro lado, desde una perspectiva vivencial, los autores ofrecen un recuento de cómo lograron impulsar esta política de salud pública en sus países y cómo sortearon su oposición. El libro es, entonces, una reflexión desde el Sur Global hacia el mundo sobre el etiquetado frontal de advertencia; una de las políticas de prevención de obesidad más importantes de los últimos años. Es un libro dirigido a académicos, activistas y estudiosos de las interacciones entre salud pública, derecho y comercio internacional.

Palabras clave: etiquetado frontal de alimentos, comercio internacional, Organización Mundial del Comercio, enfermedades no transmisibles, derecho a la alimentación, obesidad, salud.

Summary Overweight and obesity are two of the most pressing issues on today’s public health agenda. Latin America in particular is home to some of the world’s highest consumption levels of sugar-sweetened beverages and ultra-processed foods, putting its population at greater risk of noncommunicable diseases. To promote healthier eating environments and habits, the World Health Organization and Pan American Health Organization have called on countries to adopt a variety of measures, including front-of-package warning labels based on the best available scientific evidence. Several countries in the region, such as Chile, Mexico, and Peru, have adopted the octagonal warning label model, with positive results. However, the adoption of these and similar policies has not been easy. The ultra-processed food industry has put up significant resistance, citing economic, political, and legal concerns. In particular, it has argued that such policies violate international trade agreements, despite the fact that international law allows for exceptions in favor of legitimate objectives such as public health. This multi-authored volume contributes to the debate on the adoption of front-ofpackage nutrition labeling from two perspectives. First, from a legal viewpoint, the book’s authors examine the main arguments against this public health measure and

law allows for exceptions in favor of legitimate objectives such as public health. This multi-authored volume contributes to the debate on the adoption of front-ofpackage nutrition labeling from two perspectives. First, from a legal viewpoint, the book’s authors examine the main arguments against this public health measure and provide counterarguments based on international law. Second, from a lived experience perspective, the authors recount how they successfully advocated for this public health policy in their respective countries and overcame opposition. The book offers a perspective from the Global South on front-of-package warning labels, one of the most important obesity prevention policies in recent years. It is aimed at academics, activists, and others interested in the intersections of public health, law, and international trade.

Keywords: front-of-package food labeling, international trade, World Trade Organization, noncommunicable diseases, right to food, obesity, health.

To quote this book: Guarnizo Peralta, D., Urueña Hernández, R, and Carballo, J., eds. 2024. Law, Trade, and Nutrition Labeling: Reflections and Experiences from Latin America. Bogotá: Dejusticia.Law, Trade, and Nutrition

Labeling: Reflections and Experiences

from Latin America Diana Guarnizo Peralta René Urueña Hernández Juan Martín Carballo –Editors–isbn 978-628-7517-99-8 printed version isbn 978-628-7764-00-2 digital version Traducción Josefina Doz Costa Translation & Copyediting Morgan Stoffregen Cover Alejandro Ospina Layout Precolombi eu, David Reyes First English Edition Editorial Dejusticia Bogotá, Colombia, November 2024 This document is available at https:/ /www.dejusticia.org Creative Commons Attribution-NonCommercial-ShareAlike 4.0 © Dejusticia, 2024 Calle 35 No. 24-31, Bogotá D.C.

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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 © Dejusticia, 2024 Calle 35 No. 24-31, Bogotá D.C.

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info@dejusticia.org https:/ /www.dejusticia.org © Universidad de los Andes, 2024 Vigilada Mineducación. Reconocimiento como universidad: Decreto 1297 del 30 de mayo de 1964. Reconocimiento de personería jurídica: Resolución 28 del 23 de febrero de 1949, Minjusticia. Acreditación institucional de alta calidad, 10 años: Resolución 582 del 9 de enero del 2015, Mineducación. © Global Health Advocacy Incubator, 2024 Guarnizo Peralta, Diana Law, Trade, and Nutrition Labeling: Reflections and Experiences from Latin America / Diana Guarnizo Peralta, René Urueña Hernández, and Juan Martín Carballo. Editors – Bogotá: Editorial Dejusticia, 2024. 425 pages; 15 Tables y 23 Figures; 24 cm. – (Dejusticia Series)

ISBN: 978-628-7517-99-8

1. Front-of-Package Food Labeling 2. International Trade 3. World

Trade Organization 4. Noncommunicable Diseases 5. Obesity. I. Title II. SeriesContent Acknowledgments 9

Introduction: Law, Health, and the Debate on Food

Labeling in Latin America 10 Diana Guarnizo Peralta

Nutrition Labeling and International Economic Law 23

Building Regulatory Sovereignty: Nutrition Labeling, Technical Barriers to Trade, and Communities of Practice 24

René Urueña Hernández Rafael Tamayo-Álvarez Front-of-Package Food Labeling and the Committee on Technical Barriers to Trade: A Legal Perspective on Front Labeling and International Trade 48

to Trade, and Communities of Practice 24 René Urueña Hernández Rafael Tamayo-Álvarez Front-of-Package Food Labeling and the Committee on Technical Barriers to Trade: A Legal Perspective on Front Labeling and International Trade 48 Gianella Severini Juan Martín Carballo María Luján Abramo Part OneEconomic Forums as a Setting for Obstructing the Adoption of Frontof-Package Food Labeling Measures: The Case of Mercosur 72 Gianella Severini Juan Martín Carballo María Luján Abramo The Relevance of NGO Participation in the World Trade Organization 98 María Paula Barbosa Adriana Torres

Legal Perspectives on Nutrition Labeling Policies 125 Reflections on Nutrition Labeling and Self-Regulation from the Perspective of Economic Law and Human Rights: Tensions between Private Initiatives and the Protection of the Public Interest 126 Paula Angarita Tovar Julián Gutiérrez-Martínez Nutrition Labeling in Latin America: An Analysis of International Trade Regulations from a Human Rights Perspective 166 Maria Cecília Cury Chaddad Consumer Protection: The Right to Healthy Food in the Context of Consumer Relations 194 Sergio Procelli Lucas Landivar

Part TwoNutrition Labeling: Case Studies from Latin America 213

Experiences and Lessons Learned from Mexico’s Adoption of Front-ofPackage Warning Labels 214 Ana Munguía Carlos Cruz-Casarrubias Javier Zúñiga Gabriela Guzmán-Pérez Alejandra Contreras-Manzano Lizbeth Tolentino-Mayo Simón Barquera Ecuador’s Traffic Light Labeling System: Its Impact and the Potential Need for Updating 244 Daniela Valdivieso Riofrío Daniel Felipe Dorado Torres Advertising Warnings versus Front-ofPackage Warning Labels: An Analysis of Peruvian Legislation 278 Jaime Delgado Zegarra Human Rights and Food Labeling in

System: Its Impact and the Potential Need for Updating 244

Daniela Valdivieso Riofrío Daniel Felipe Dorado Torres Advertising Warnings versus Front-ofPackage Warning Labels: An Analysis of Peruvian Legislation 278 Jaime Delgado Zegarra Human Rights and Food Labeling in

Argentina: Social Actors and Economic

Interests 308 Berenice Cerra Luciana Castronuovo Leila Guarnieri Maria Victoria Tiscornia Maria Elisabet Pizarro Part ThreeThe Challenges of Brazil’s Adoption of Front-of-Package Nutrition Labeling 334 Laís Amaral Mais Mariana de Araújo Ferraz Mariana Gondo dos Santos Patrícia Chaves Gentil Janine Giuberti Coutinho Renato Barreto Florentino Ana Paula Bortoletto Martins Civil Society Efforts during Uruguay’s Adoption of Its Front-of-Package Food

Labeling Policy: Health over Economic

Interests? 376 Lucía Martínez Diego Rodríguez Raquel Sánchez Contributors 414 Editors 4249 Acknowledgments We are grateful to the Global Health Advocacy Incubator, the School of Law at the University of the Andes, and Dejusticia for their financial, research, and editorial support. We are especially grateful to Morgan Stoffregen, Paula Angarita, Johnattan García, Claudia Luque, Andrés Hernández, and Margarita Belandria for their translation work, editorial assistance, and language editing. Their meticulousness and attention to detail were critical for the development of this book. We would also like to thank the participants of the Third Regional Meeting on Adequate Food, a virtual convening that we organized in September 2020 that brought together a diverse group of jurists, litigators, and activists from Argentina, Brazil, Colombia, Chile, Ecuador, Mexico, Peru, and the United States with a shared interest in promoting healthier food environments through legal practice. It is those participants who contributed to this book.

September 2020 that brought together a diverse group of jurists, litigators, and activists from Argentina, Brazil, Colombia, Chile, Ecuador, Mexico, Peru, and the United States with a shared interest in promoting healthier food environments through legal practice. It is those participants who contributed to this book. The process of planning, writing, and editing each of the chapters allowed us to reconnect with one another virtually and focus on a common purpose, despite the constraints of the COVID-19 pandemic. This volume is also a tribute to the authors’ commitment to improving access to adequate and healthy food for all people in Latin America. Their work on the strategic use of the law has contributed to fundamental changes in public policies on nutrition labeling, as well as obesity prevention in general. Thanks to their efforts, Latin America’s legal framework has become more amenable to public health goals. The healthier environments that are being created and the lives that are being extended as a result of these changes are due in large part to this work.Introduction: Law, Health, and the Debate on Food Labeling in Latin America Diana Guarnizo Peralta11 The Problem of Overweight and Obesity and the Importance of Labeling Overweight and obesity are two of the most pressing issues on today’s global health agenda. Latin America in particular is home to some of the world’s highest consumption levels of sugar-sweetened beverages and ultra-processed foods, putting the population at greater risk of noncommunicable diseases (NCDs) such as heart disease, diabetes, and certain types of cancer. Indeed, NCDs are the current leading cause of death in the world (World Health Organization 2019), and obesity is one of their risk factors. Added to this, the COVID-19 pandemic has exacerbated overweight and obesity rates, creating the “perfect storm” (Katmarzik et al. 2020). Addressing the issue of weight gain has thus become a public health imperative in the region. In addition, ensuring access to adequate and healthy food is an ethical imperative. Obesity is increasingly affecting lowexacerbated overweight and obesity rates, creating the “perfect storm” (Katmarzik et al. 2020). Addressing the issue of weight gain has thus become a public health imperative in the region. In addition, ensuring access to adequate and healthy food is an ethical imperative. Obesity is increasingly affecting lowincome populations, who often lack access to fresh and varied foods as well as the time and facilities to engage in physical exercise. In fact, school-age children from low-income families tend to be one of the groups most commonly affected by the recent changes in eating patterns in the region, where the consumption of ultra-processed foods and sugar-sweetened beverages is becoming increasingly commonplace. It has also become evident that strategies that focus on individual responsibility, such as education and the promotion of exercise, are not sufficient. There is an urgent need for measures that address the obesogenic contexts in which we live and that promote healthier habits. Against this backdrop, the World Health Organization (2013), the Pan American Health12 Organization (2020), and the United Nations Special Rapporteur on the Right to Health (2020) have called on states to adopt nutrition warning labeling, based on the best available scientific evidence, to curb overweight and obesity. Clear and simple labeling would make it easier to recognize less healthy products and thus reduce their consumption. Currently, there are a variety of ways to display the nutritional information of the foods we consume, although not all of them have the same impact. For years, the food and beverage industry has advocated a form of labeling known as guideline daily amounts, which we now know does not help people make informed decisions. In Europe, several countries have adopted the Nutri-Score model, which uses five different colors to classify foods according to their nutritional value; however, this system has been criticized for being misleading and difficult to read. Meanwhile, in Latin America, countries such as Chile, Uruguay, Peru, and Mexico have adopted black octagonal nutrition warning labels, which have shown positive results by discouraging the purchase of these products by

however, this system has been criticized for being misleading and difficult to read. Meanwhile, in Latin America, countries such as Chile, Uruguay, Peru, and Mexico have adopted black octagonal nutrition warning labels, which have shown positive results by discouraging the purchase of these products by consumers (Talati et al. 2017). Other models such as the “traffic light” model, implemented in Ecuador, and the magnifying glass warning labels, implemented in Brazil, have not shown the same results. Nonetheless, these measures, taken together, reveal a trend across the region toward the adoption of warning labels on ultra-processed foods containing excess amounts of nutrients of concern. Despite the effectiveness of the octagonal warning label model in the countries that have implemented it, its adoption has not been easy. The ultra-processed food industry has opposed this labeling measure on economic, political, and legal grounds. For example, it has argued that such labeling causes job loss and hurts industry. It has also claimed that such labeling stigmatizes the consumption of certain products and is a paternalistic measure that violates individual freedom of choice. And from a legal standpoint, industry has argued that this type of labeling violates international economic agreements and ignores state obligations under the World Trade Organization. In fact, in several countries, the ultra-processed food industry has threatened to initiate international disputes if governments13 adopt such labeling policies; and in some countries, it has filed domestic lawsuits. As a result, the legal debate has been assimilated into public policy discussions on obesity prevention. It is thus critical to first analyze the contours of this debate before discussing how this book seeks to contribute to it.

Law and Health: The Role of Law in the Debate on Policies for NCD Prevention In today’s globalized world, achieving the ideal of the highest attainable standard of physical and mental health is impossible without the help of a variety of economic, political, institutional, and legal tools. In this sense, the law—understood broadly as a group of rules aimed at regulating a given situation or social

In today’s globalized world, achieving the ideal of the highest attainable standard of physical and mental health is impossible without the help of a variety of economic, political, institutional, and legal tools. In this sense, the law—understood broadly as a group of rules aimed at regulating a given situation or social relationship—is increasingly being drawn on as a tool to improve people’s health. The adoption of NCD prevention policies is no exception to this trend. Here, perhaps the most paradigmatic example is the World Health Organization Framework Convention on Tobacco Control, which, to date, is the only binding treaty that seeks to reduce the demand for tobacco, a product whose consumption is linked to numerous NCDs. In the area of obesity and overweight, there is still no binding mechanism with concrete obligations regarding obesity prevention, food, and NCDs, although some scholars have made various proposals, including for a treaty to promote a healthy, equitable, and sustainable food system (Swinburn 2019); for a United Nations instrument to regulate corporate activities on obesity and global health (Patterson et al. 2019); and for an optional protocol to protect children’s rights to health and food (Clark et al. 2020). Several areas of international law stand out in terms of their importance in creating better conditions for global health. International human rights law is perhaps the field that has been most widely drawn on in this regard. Indeed, the objective of achieving “the highest attainable standard of physical and mental health” arises from a human rights treaty (International Covenant on Economic, Social and Cultural Rights, art. 12). Given the relevance and the conceptual and doctrinal development of the right to health in terms of addressing global14 health problems, this right has had an especially deep impact on the framing of these debates. For example, with regard to food labeling, the statement made in 2020 by the United Nations Special Rapporteur on the Right to Health (Office of the United Nations High Commissioner for Human Rights 2020)

health problems, this right has had an especially deep impact on the framing of these debates. For example, with regard to food labeling, the statement made in 2020 by the United Nations Special Rapporteur on the Right to Health (Office of the United Nations High Commissioner for Human Rights 2020) represents a milestone. The statement highlights states’ duty to ensure that regulations to prevent harm to people’s health stemming from the consumption of unhealthy foods “are driven by human rights and scientific evidence free from conflicts of interest” (ibid.). Recently, other rights (such as the rights to food, to water, and even to a healthy environment) have reemerged on the international scene, offering new elements for determining state obligations regarding public health issues. Indeed, good health requires access to quality food, potable water, and a clean and healthy environment. These factors are thus considered determinants of health, and, consequently, various international documents have recognized states’ duty to guarantee adequate access to them. In terms of food, for example, important documents include the reports of the Special Rapporteur on the Right to Food, which identify the advertising of ultra-processed foods and the absence of clear labeling as contributors to the global “nutrition transition” and the concomitant increase in overweight and obesity (Elver 2014, 2016). Meanwhile, with regard to the right to water, numerous documents have highlighted the interdependence between this right, food, and life, arguing that situations such as droughts and the contamination of groundwater can threaten the right to food (Ziegler 2003, paras. 36–51). Furthermore, with the recent recognition of the right to a healthy environment, it becomes even clearer that pollution, biodiversity loss, and climate change are having an alarming impact on people’s physical and mental health (Human Rights Council 2016). But of course, this has not been the only contribution of human rights. Human rights principles have also been key in

a healthy environment, it becomes even clearer that pollution, biodiversity loss, and climate change are having an alarming impact on people’s physical and mental health (Human Rights Council 2016). But of course, this has not been the only contribution of human rights. Human rights principles have also been key in providing ethical underpinnings for the ideal of achieving the highest attainable standard of health. For example, the principle of human dignity has made it possible to place human beings,15 as subjects worthy of dignity, at the center of health policies, instead of more utilitarian judgments that prioritize benefits for the majority. Other principles such as equal treatment and nondiscrimination also represent an important step forward, as they provide a basis for which the most disadvantaged groups—including migrants, elderly persons, children, women, and Indigenous communities—can claim access to health. Human rights have also given content to the notion of health. Indeed, the elements of availability, accessibility , acceptability , and quality, as developed by the United Nations Committee on Economic, Social and Cultural Rights (2000), have offered practical grounding for the debate on the scope of the right to health. Lastly—and this is perhaps their most important contribution—human rights have helped empower individuals and groups in their quest for better health conditions by providing a legal framework that allows these actors to position their demands in terms of state obligations as opposed to merely issues of charity or advantageous public policy. Meanwhile, other areas of international law—most prominently, international economic law—have recently entered the discussion on global health. Given that the purchase and consumption of certain products (e.g., tobacco, ultra-processed foods, medicines, and so forth) can have a positive or negative impact on a person’s health and that the production, distribution, and marketing of these products depends on globalized supply chains, the rules that regulate these commercial processes necessarily play a fundamental role in the protection of global health. An inherent tension in this legal field in terms of addressing health-related issues is the regulation/deregulation of health

tion, and marketing of these products depends on globalized supply chains, the rules that regulate these commercial processes necessarily play a fundamental role in the protection of global health. An inherent tension in this legal field in terms of addressing health-related issues is the regulation/deregulation of health markets. Indeed, international economic law tends to favor market liberalization under the idea that greater freedom in the movement of goods and services translates into better consumer access to these things. That said, from a health promotion perspective, the aim is to look beyond the impacts of international trade and promote basic rules to ensure a minimum level of protection for consumers of these products. When it comes to ultra-processed foods, this tension is clear: while some sectors call for the freest trade possible, the health16 movement advocates for the inclusion of clear labels or warnings to alert consumers of the consequences of regularly consuming such products. Although international economic law allows for the possibility of justifying these kinds of measures on the basis of public health—so that there is an adequate balance between these two issues (McGrady 2018, 106–107)—the inherent tension in this legal discipline is reflected in the political and legal debate. A detailed analysis of this field is thus necessary in order to understand how these interests complement each other. Investment law is another discipline that has become relevant for the implementation of NCD prevention policies. This body of law, consisting of a variety of bilateral and multilateral investment agreements, allows foreign investors to protect their economic interests through dispute settlement clauses and arbitration tribunals. These mechanisms have been criticized for their lack of transparency and for their tendency to favor the economic interests of investors over other public interests of the state, such as the protection of health or the environment. In terms of food labeling, these dispute settlement mechanisms can be used to hinder the adoption of public health measures or to delay their implementation. In Mexico, for example, after the government approved a regulation in 2020 requiring warning labels on ultra-processed foods high in sugars, fats, or

In terms of food labeling, these dispute settlement mechanisms can be used to hinder the adoption of public health measures or to delay their implementation. In Mexico, for example, after the government approved a regulation in 2020 requiring warning labels on ultra-processed foods high in sugars, fats, or sodium or that contain sweeteners or caffeine, a cereal company (whose identity remains unknown) challenged the government before an arbitration tribunal, invoking the protection of the Free Trade Agreement between the United States, Mexico and Canada (Mardirossian and Johnson 2021). Even if such cases are ultimately unsuccessful, they can serve as effective strategies for the food industry to delay the implementation of public health policies. This Book’s Role in the Debate This book seeks to contribute to the debate on the adoption of nutrition labeling policies by offering a legal perspective that draws on human rights and international economic law. In this light, the book has two main objectives. First, it seeks to analyze some of the main arguments made against this type of public17 health measure, focusing in particular on arguments based on international economic law. It responds to these arguments by drawing both on international economic law and international human rights law. In this regard, the book aims to serve as a guide for activists, civil society organizations, policymakers, and academics interested in promoting public health measures to reduce overweight and obesity. In general, it posits that international economic law, if properly interpreted, does not pose an obstacle to the adoption of public health measures such as food labeling. Second, the book seeks to document front-of-package food labeling policies that have been adopted in the region, drawing on the experiences of the civil society organizations and activists who have advocated for them. Here, the book has an emancipatory and decolonial aim insofar as it seeks to tell a story from the perspectives of these stakeholders and to offer a reflection from the Global South to the world. This aspect is key, because although there are several publications that address the

activists who have advocated for them. Here, the book has an emancipatory and decolonial aim insofar as it seeks to tell a story from the perspectives of these stakeholders and to offer a reflection from the Global South to the world. This aspect is key, because although there are several publications that address the intersection between global health and the law (Burci et al. 2018; Garde et al. 2020), few—if any—are focused on Latin America. The book is divided into three parts. The first part, working within the lens of international economic law and human rights, examines some of the most frequent arguments made against nutrition warning labels. Thus, the first few chapters discuss the relevance and justification of front-of-package food labeling vis-à-vis World Trade Organization (WTO) mechanisms. The chapter by René Urueña Hernández and Rafael Tamayo- Álvarez analyzes the Agreement on Technical Barriers to Trade from a socio-legal perspective, arguing that this treaty has forged a “community of practice” aimed at generating “legal meanings, discursive patterns, and cognitive frameworks.” As the authors explain, the interactions among this community of practice end up shaping the scope of government action concerning regulatory measures such as labeling policies. It is therefore important, they argue, for civil society organizations to appropriate the legal knowledge specific to this community in order to help ensure a progressive interpretation. Next, the chapter by Gianella Severini, Juan Martín Carballo, and María Luján Abramo e