Does trade law influence the scope and mechanisms that governments have to design, choose, and implement health policy?

It has long been argued that trade rules restrict health policy space: the freedom, scope and mechanisms that governments have to design, chose and implement new public health regulations. Concerns centre on clauses that set pre-defined limits for establishing new health regulations, which could lead to disputes that alter or repeal regulations that contravene these rules. Yet these effects of these rules are highly debated. Few such disputes have arisen, and even fewer have led to a change or reversal of a health policy. However, the number and outcomes of formal disputes may obscure a more significant pathway to impact: how an informal challenge to a regulation’s consistency with trade rules may lead countries to delay, alter or repeal the regulation in order to avoid the costs of a formal dispute. Systematic empirical analysis of this pathway to impact has so far been prevented by a dearth of available data. In this talk I will present an analysis of a newly created dataset of informal challenges about food, beverage and tobacco regulations among 122 countries at the World Trade Organization (WTO), 1995-2016. I thematically describe the scope, frequency and content of informal trade challenges, analyse economic asymmetries between countries raising and defending informal challenges, and summarise four cases of their influence. I show that between 1995 and 2016, 93 food, beverage and tobacco regulations in public health interest were challenged at WTO. The main reasons focused on ‘unnecessary’ trade costs. Only one challenge remained unresolved and escalated to a formal trade dispute. Countries most frequently challenged one another’s labelling regulations and product quality standards or restrictions using certain ingredients. High-income countries raised 77.4% of all challenges raised against low- and lower-middle income countries. I also identified at least four cases in Indonesia, Chile, Colombia and Saudi Arabia where food and beverage regulations appeared to be directly altered following an informal trade challenge. Policy makers appear to be increasingly pressured into designing food, beverage and tobacco regulations that other countries deem consistent with trade rules. Trade-related influence on public health policy is likely to be understated by analyses limited to formal disputes.

Pepita Barlow is a doctoral candidate in the University of Oxford Department of Sociology.