Chile is set to become the first country in the world to introduce mandatory health warnings on food products. It remains to be seen how this labeling scheme will score under WTO law and in particular the necessity test imposed by the TBT Agreement.
The international community learned last week, on the occasion of the latest meeting of the TBT Committee, Chile’s proposed amendments to its Food Health Regulations — which would place “STOP” signs on junk food.
Pursuant to the amendment, certain categories of food would need to bear labels designated to inform and encourage consumers to avoid excessive intake which may lead to obesity and related non-communicable diseases. Moreover, products containing a critical amount of certain substances (e.g. fat, sugar, salt) would have to bear labels such as “high in salt”, “high in calories” or equivalent warnings. These warnings would need to be placed in the middle of an octagonal icon (i.e. a STOP sign) occupying no less than 20% of the main surface of the package, be located in the upper right corner, and have a size of at least 4 square centimetres. new concerns regarding Chile’s proposal.
Unsurprisingly several delegations raised the following concers. They claimed that the amendment was not based on the relevant guidelines of Codex on nutrition labelling, that it would create unnecessary obstacles to international trade, and that it had not been notified to the TBT Committee.
In response, Chile said that the measure responded to an epidemic of obesity, especially among young people, and that the measure was necessary to provide easily understandable warnings on products.
Although pioneering in the food sector, the Chilean regulatory initiatiave belongs to a broader trend of public policies aimed at tackling lifestyle risks by conveying information to the public. While the consumer paradigm approach has become mainstream in tobacco control – through the Framework Convention on Tobacco Control, it is now gradually extending to the alcohol and food sector. As I often reported in this blog here and here and illustrated in my writings – mandatory information disclosure has to be interpreted within a broader trend aimed at reducing the visual appeal of the packaging of products. As regulators have become suddenly aware of the power of marketing in inducing consumer choices, they seem ready to offset those marketing techniques (that have been in use since the 1960s) that are increasingly used to market products that are perceived as unhealthy. As a result, besides the most extreme form (generally called plain packaging), other less intrusive forms of standardized packaging are emerging. Besides the well-known example of the Thai liquor labeling regime (which by imposing mandatory graphic warnings reduce the marketing opportunities of the alcohol manufacturers by shrinking the size of the label), there are today – as illustrated by the Chilean proposal – other attempts aimed at spoiling the pack of certain products of their most glamorous and appealing components. Clearly a STOP label would serve that purpose.
It remains to be seen how this legislation will be designed (e.g. how the ‘unhealthy’ products will be identified ? Nutritional profile will be set up ?) and eventually how will it score under the necessity test provided for the TBT Agreement. While the recent TBT trio of cases do not offer a useful guidance, the pending Australia — Tobacco Plain Packaging (Ukraine) is likely to address, although within the specific framework of tobacco control, that question.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.