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Sydney Law School. Legal Studies Research Paper. No. 11/88. November 2011. The Role of Law in the Global Response to NCDs. Roger Magnusson and ...
Sydney Law School Legal Studies Research Paper No. 11/88 November 2011

The Role of Law in the Global Response to NCDs Roger Magnusson and David Patterson This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1954289.

Electronic copy available at: http://ssrn.com/abstract=1954289

The role of law in the global response to NCDs

A consensus is emerging about the affordable and cost-effective interventions that could most reduce the burden of NCDs in low and middle-income countries.1-3 These priority interventions focus on the proximate causes of NCDs in all countries: tobacco use, harmful use of alcohol, lack of physical activity, and the overconsumption of salt, sugar and saturated fat. Priority interventions for tobacco include enforcing comprehensive bans on tobacco advertising, promotion and sponsorship; health warnings on tobacco products; raising taxes on tobacco; banning smoking in public places; banning tobacco sales to children; and penalties for smuggled and counterfeit tobacco.1 Interventions for alcohol include raising tax rates on alcoholic beverages; restricting alcohol advertising and sponsorship of sporting and cultural events; restrictions on time of sale of retailed alcohol and minimum age purchasing laws; drink driving counter-measures; and penalties for smuggled and informal alcohol.1 Priority interventions for diet include replacing trans fats with polyunsaturated fats; reducing the salt content of food; restrictions on marketing of foods and beverages high in salt, sugar and fat (especially to children); improving food labelling; and encouraging food reformulation, especially salt reduction.1 A striking feature of each of these interventions is that legal and regulatory actions by governments will be needed for successful implementation. Unfortunately, the need for global leadership in public health law has received minimal attention. The experience of high-income countries with tax raises, warning labels, advertising bans and retail controls on tobacco and alcohol suggests that the implementation of priority interventions in low and middle-income countries will be strongly resisted by industries that benefit from harmful forms and levels of consumption.4 In many countries, public health laws are outdated, technical capacity is lacking, and governments are vulnerable to inappropriate forms of corporate influence. For example, in Indonesia, the world’s fifth largest tobacco market, a clause dealing with tobacco in the Health Bill, which had been passed by Parliament, went missing from the version that was sent to the President for signature.5 National governments must also navigate WTO rules and obligations under Bilateral Investment Treaties (BITs), while resisting pressures from trading partners acting on behalf of tobacco and other business interests domiciled in their territory.6-7 While no global agency currently combines resources, technical capacity, and a comprehensive commitment to leadership in public health law, important opportunities do exist for a collaborative approach that combines the strengths of different partners. For example, the International Development Law Organisation (IDLO), an inter-governmental organisation based in Rome, has a comparative advantage in convening legal expertise and in legal training, and strong relationships with legal officials at the country level. IDLO is providing global leadership in HIV/AIDS law, and it has recognised NCDs as a priority.8 Opportunities exist for WHO, the World Bank, regional development banks, the Inter-

Electronic copy available at: http://ssrn.com/abstract=1954289

Parliamentary Union, the Commonwealth Secretariat and other regional organisations to convene legal expertise, to partner in legal training and the development of legal resources, and to fund legal assistance to countries in a variety of ways. An empowered NGO sector is vital for holding governments to account and advocating for law reform. Important work is being done through the Bloomberg Foundation-funded International Legal Consortium,9 and NGOs such as the Southeast Asia Tobacco Control Alliance,10 although a broader focus will be needed in future to address other risk factors. Given the many legal differences between countries, narrowly prescriptive solutions are neither helpful nor welcome. The differences between tobacco and alcohol, diet and sedentary lifestyles also suggest different roles for law in relation to each. Many opportunities exist for the food industry to be part of the solution to the NCDs crisis. Some manufacturers are already cutting salt and sugar, and eliminating trans fats, from their products. Global leadership in public health law should focus on three priorities. Firstly, high-quality legal resources are needed to assist countries to evaluate options and to navigate the process of implementing legal reforms, with case studies and examples of success from lowerresource countries. Secondly, investment in capacity building is required to nurture future leaders in public health law, and to counter-balance the legal expertise that industry and business groups can access in the private market. Thirdly, one likely outcome of the UN High-Level Meeting on NCDs in September 2011 is a growing realisation of the need for technical legal assistance by national and regional governments, both in framing domestic laws, and navigating international obligations. Implementing effective policies to reduce the prevalence NCD risk factors is the most powerful way of improving longevity and healthy life expectancy – globally – for the foreseeable future. The funding required to address these three legal priorities is modest when compared with the cost of inaction to communities, health care systems, and national economies. References [1] WHO. Global status report on noncommunicable diseases. Geneva: WHO; 2011. http://www.who.int/nmh/publications/ncd_report2010/en/ (accessed June 20, 2011). [2] Beaglehole R, Bonita R, Horton R. et. al, for the Lancet NCD Action Group and the NCD Alliance. Priority actions for the noncommunicable disease crisis. Lancet 2011; 377:1438-1447. http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)60393-0/fulltext (accessed June 20, 2011). [3] Beaglehole R, Bonita R, Alleyne G, Horton R. et. al, for the Lancet NCD Action Group. UN Highlevel meeting on non-communicable diseases: addressing four questions. Lancet, Published online June 13, 2011; DOI:10.1016/S0140-6736(11)60879-9. http://www.lancet.com/journals/lancet/article/PIIS0140-6736(11)60879-9/fulltext (accessed June 20, 2011). [4] Malone R. The tobacco industry. In Wiist W, editor. The bottom line or public health: tactics corporations use to influence health and health policy, and what we can do to counter them. New York: Oxford University Press; 2010, pp 155-191.

Electronic copy available at: http://ssrn.com/abstract=1954289

[5] Maulia E. Govt denies involvement in missing law clause. Jakarta Post. 14 October 2009, at: http://www.thejakartapost.com/news/2009/10/14/govt-denies-involvement-missing-law-clause.html (accessed June 20, 2011). [6] Mitchell A, Voon T. Implications of the World Trade Organization in combating noncommunicable diseases. Melbourne Law School, Legal Studies Research Paper No. 485, 1 May 2010, available at: http://ssrn.com/abstract=1626733 (accessed June 20, 2011). [7] Lencucha R. Philip Morris versus Uruguay: health governance challenged. Lancet 2011; 376:852853 http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(10)61256-1/fulltext (accessed June 20, 2011). [8] International Development Law Organization (IDLO). Health law program; website at: http://www.idlo.int/english/whatwedo/Programs/health/Pages/default.aspx (accessed June 20, 2011). [9] The International Legal Consortium. Tobacco Free Kids; website at: http://www.tobaccocontrollaws.org/about.php (accessed June 20, 2011). [10] Southeast Asia Tobacco Control Alliance (SEACTS); website at: http://www.seatca.org/index.php (accessed June 20, 2011).