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The use of law as an instrument in prevention: A short report from the EU Summit on Chronic Diseases

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Today I attended the first day of the EU Summit on Chronic Diseases. The Summit brings together policymakers, stakeholders and interest groups involved in chronic disease prevention, with the aim of developing a set of recommendations for policy action to reduce the medical, social and economic burden of chronic diseases in the EU. This post gives a brief overview of the key themes from the first day of the Summit, and provides a written version of my presentation on the role of law in chronic disease prevention.

The first day of the Summit involved a series of workshops that explored the specific areas in which the EU could take action to prevent chronic disease. It generated a series of recommendations that will be developed on Day 2 of the Summit by representatives from national health ministries and global health organizations, in addition to the attendees from Day 1.

Today’s workshops covered a broad range of topics, including cancer prevention, EU action on air pollution and the other environmental determinants of health, the challenges of aging and chronic disease treatment in older patients, diabetes management, and tobacco control. Some clear overarching themes emerged from the sessions that I attended, despite the diversity of presentations. Participants stressed the importance of:

  • An “all-of-government” or “health-in-all policies” approach to chronic disease prevention;
  • Addressing health inequalities within and between countries, despite absolute improvements in health overall;
  • Effective implementation of national and international prevention initiatives, with many participants commenting on the uneven adoption of tobacco control measures under the Framework Convention on Tobacco Control;
  • Generating the political will for legislative and fiscal policies that move beyond education- and information-based approaches to prevention;
  • Improving the quality of data on chronic disease prevalence, strengthening the evidence base for effective prevention measures, and coordinating data sharing across the EU region;
  • Increased funding for, and capacity building in, chronic disease prevention: several participants raised concerns about EU austerity measures and their long-term impact upon chronic disease prevention – not just financially, but also in terms of the human resources available for prevention.

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I presented in workshop 5 of the Summit, which explored innovation in prevention, and ways in which health advocates can focus government attention on the prevention of NCDs, rather than on treatment. I’ve reproduced my presentation in this post as several participants expressed an interest in the ideas that I discussed, and also because aspects of my presentation outline solutions to the issues raised above. I hope that the hyperlinks in the text will provide readers with additional resources on the topic of law and chronic disease prevention.

My presentation asked, how can law can be used as a tool in chronic disease prevention? At first glance this looks like a very complicated question, but the answer is really very simple: the law plays a fundamental role in chronic disease prevention.

When most people think about the law, what immediately springs to mind is traditional, black letter law, by which I mean a rule that is set forth by government, and backed by legal sanctions for non-compliance. This is an incredibly powerful weapon in chronic disease prevention, as governments have an almost unique ability to compel individuals to behave in a particular way, and to sanction them when they fail to do so.

This legal power can be a significant driver of behavior change that benefits public health. An obvious example of this form of law would be legislative bans on tobacco advertising that have been introduced in many developed countries. In 2011 the Australian Government pushed the boundaries of marketing restrictions by announcing the introduction of plain packaging laws that requires cigarettes to be sold in plain brown packets, with no graphic trademarks or other embellishments.

But it would be wrong to think of law only as a tool for prohibiting particular forms of behavior; it is much more than that. One of the law’s most important roles in chronic disease prevention is reshaping the social and physical environment to make it easier for people to exercise more, to use public transport, to purchase fresh fruit and vegetables, to limit their alcohol intake and to give up smoking.

The law has a broad range of tools at its disposal to achieve this goal, and while they may work in more subtle ways than direct regulation, they are just as significant.

Governments can create a health-promoting environment through their power to tax and spend, for example, food taxes on products containing high levels of salt, fat or sugar, which have been introduced in countries such as Hungary, Finland, Denmark and France. Governments can also use fiscal incentives such as tax breaks to encourage grocery stores to open in areas that are overpopulated with fast-food restaurants and liquor shops, but lack accessible grocery stores selling fresh fruit and vegetables.

Governments can alter the informational environment using education and social awareness campaigns to inform consumers, as well as labeling requirements and calorie counts on fast-food menus to help people choose healthier food and drink. The British government encourages food manufacturers and retailers to use traffic light labeling on packaged foods, with a red light flagging products that are high in fat, saturated fat, salt and sugar, and amber and green lights indicating medium and low levels of undesirable nutrients. Evidence suggests that measures such as front-of-lack labeling not only influence what products consumers buy, they also pressure food companies to reformulate products to reduce levels of fat, salt and sugar.

Governments can reshape the physical environment through zoning regulations and other urban design measures. Streets can be redesigned to promote cycling, walking and the use of public transport, increasing physical activity while also reducing greenhouse gasses that are linked to cancer, and to global warming. For example, Danish planning legislation includes provisions that seek to ensure a good environment and sound living conditions.

We should add self-regulation to the tools that governments have available in the fight against chronic disease, despite the fact that it is not usually linked to state action. Although questions remain about whether engagement with industry benefits public health, self-regulation represents an increasingly common form of public health intervention.

In reality there’s a complex relationship between self-regulation and government intervention. Industry initiatives are often encouraged or facilitated by governments, either tacitly or explicitly. In many countries the food industry has adopted voluntary pledges on advertising to children, as with the EU Pledge, under which participating companies agree to market only healthier products to young audiences. Many such advertising pledges resulted from the threat of government regulation. In other cases self-regulation operates within legislative scaffolds that demand industry participation and describe broad regulatory rules, but leave industry to police itself. This is the case with the UK’s co-regulatory restrictions on unhealthy food advertising in and around programs of particular appeal to children.

We see the emergence of new hybrid tools that might be better described as governance rather than law, because they often involve multiple, non-state actors, with the locus of control lying outside of government. Public-private partnerships represent one example of public health governance, with this term covering arrangements that vary significantly in relation to their participants, legal status, management, contributions and operational roles. The UK’s Public Health Responsibility Deal is one example of a public-private partnership that brings together government, private and non-government actors to address the main modifiable risk factors for chronic disease, including poor diet, tobacco use, excess alcohol consumption and physical inactivity.

Apart from the actions of national governments, there is increasingly a global dimension to legal efforts to control chronic disease – as elaborated by Lawrence Gostin. This encompasses supranational forms of law, such as EU directives and legislation on the provision of food information to consumers, on tobacco advertising and on audiovisual media services, which includes rules on advertising to children.

It also encompasses instruments promulgated by the World Health Organization, including international treaties such as the Framework Convention on Tobacco Control, which places legally binding obligations on member states, as well non-binding soft norms found in World Health assembly resolutions and in global strategies such as those for Diet, Physical Activity and Health, and to Reduce the Harmful Use of Alcohol.

Through its declarations, resolutions and treaties, the United Nations plays an important role in shaping national responses to chronic disease. The UN’s Political Declaration on Non-Communicable Diseases committed Member States to a comprehensive set of actions to prevent and treat NCDs, with the goal of reducing premature mortality by 25% by 2025. The human right to health was first enunciated in the WHO Constitution and later in the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as in other national, regional and international human rights instruments. It provides an important moral underpinning to chronic disease prevention, and commits states to provide access to health care, and to take steps to provide access to safe and nutritious food, and to adequate living conditions.

Outside of the efforts of global health actors, international regimes that govern trade, agriculture and intellectual property have significant health implications, and in some instances present a barrier to achieving public health objectives. Roger Magnusson and David Patterson write that states must navigate World Trade Organization rules and obligations under bilateral investment treaties, which sometimes threaten the introduction of national initiatives. For example, Philip Morris has challenged Australia’s tobacco plain packaging laws under a Hong-Kong Australia bilateral investment treaty, and the tobacco industry has supported Ukraine in filing a dispute with the WTO over these laws, with Honduras, Cuba and the Dominican Republic filing similar complaints.

This brief overview of national and global governance of NCDs shows that prevention engages a diverse array of legal instruments operating at national, regional and global levels. There is much more that could be done to further countries’ legal and regulatory responses to chronic disease. Yet legislative efforts face a series of challenges, including aggressive industry lobbying against laws that impact upon business practices, managing the involvement of the food and alcohol industries in public health, and popular perceptions of public health laws as paternalistic or regressive.

We can navigate some of these political roadblocks by using a phased or stepwise approach to the introduction of simple and cost-effective interventions. As identified by the WHO, the most effective measures include strengthening tobacco control, enforcing advertising bans and raising taxes on alcohol, dietary salt reduction to lower blood pressure, replacing trans fats with polyunsaturated fats, and promoting the importance of physical activity and healthy eating.

One lesson from tobacco control is that states must consider a “basket of interventions” when addressing the main modifiable risk factors for chronic disease. Chronic disease prevention requires a complementary set of initiatives that seek to change individual behavior through education and information, but which also address the wider social, economic and cultural factors that shape individual choices around smoking, eating, alcohol and physical activity. As with bans on smoking in public places, legislation can move ahead of public opinion and drive changes in social norms, but it can only do so in the context of a comprehensive suite of policy initiatives.

When implementing these measures, states can consider new forms of regulatory interventions that are likely to meet with less industry and public resistance than direct regulation. Self-regulation, public-private partnerships and other voluntary measures can play a role in chronic disease prevention, but only when accompanied by strong government leadership and engagement with civil society and other non-state actors. States must also monitor the progress of such initiatives against meaningful goals and performance indicators, make public progress reports and undertake regular reviews. States can reserve the right to escalate to more demanding forms of regulation when industry participants fail to meet their obligations under self- or co-regulatory strategies.

States must takes a “health-in-all policies” approach that incorporates chronic disease prevention in all areas of government activity, as well as in international legal regimes. This approach involves multi-sectoral action and engagement with a diverse range of government sectors, requiring a national plan on NCD prevention, a political or legal mandate for multi-sectoral action, processes and mechanisms to develop and implement policies, and an accountability framework that clearly spells out the roles and responsibilities of all ministries and partners in achieving chronic disease prevention.

Considering the diversity of countries within the EU, chronic disease prevention may require significant capacity building in lower-income nations. This includes reorientation of health systems towards primary care, and the creation of health sector infrastructure for NCD prevention, including a funded unit for prevention and treatment of chronic diseases. Legal capacity for prevention can be enhanced by countries sharing their experiences and examples of best practice. States may need to build financing capacity for prevention, while also tailoring their programs to available national resources. Finally, countries may need to increase their regulatory capacity by assessing current policies, laws and programs for chronic disease prevention and identifying obligations that are owed under international agreements such as the Framework Convention on Tobacco Control. This form of audit may help address concerns about uneven implementation of international legal obligations under instruments such as the Framework Convention on Tobacco Control.

To achieve substantial advances in chronic disease prevention, states must move beyond information campaigns and health education that targets individuals, to legal, fiscal and regulatory strategies that shift the broader social, economic and cultural drivers of chronic disease. An effective legislative approach requires a comprehensive suite of initiatives, sometimes drawing upon novel forms of regulation and governance, but always within the context of strong government leadership, civil society mobilization, and enhanced financial, human and legal capacity for state implementation of programs. The law will continue to play a fundamental, and growing, role in NCD prevention, because it underpins the some of the most effective strategies for reducing the global burden of chronic disease.

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  • Bob Chapman says:

    Excellent post Belinda and quite timely for us here at the American Cancer Society as we support our EU partners. Thank you for your work.

    • Belinda Reeve says:

      Thank-you Bob, I’m glad to hear that it’s useful for your work. You’re welcome to contact me at the Institute if you have any questions about my presentation.

  • 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.

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