It's been 20 years since the European Union (EU) set out to promote better health for all. The EU's Farm-to-Fork Strategy and Europe's Beating Cancer Plan have promised bold measures to improve food environments, but many of these promises remain unfulfilled. The giants of the food industry have been successful in lobbying against EU-wide regulation that could genuinely promote healthier food environments. Amandine Garde, Professor of Law and Founding Director of the Law and Non-Communicable Diseases Research Unit at the University of Liverpool, shares her personal insights into the commercial determinants of health.
Exactly twenty years ago, I had my first opportunity to closely witness how the commercial determinants of health operate. I was a trainee-solicitor in a large commercial law firm whose food law group was helping multinational food companies address what they called ‘the obesity risk’. The industry was specifically seeking to ensure that the EU regulation on nutrition and health claims made on food, which the Commission had just proposed, would not see the light of day.
After three years of intense discussions, the Food Claims Regulation was nonetheless adopted. It remains a milestone of EU nutrition policy: it prohibits the use of misleading food claims by requiring that nutrition and health claims are subject to a scientific approval process. I was thrilled to discover a whole new policy area at a time when the EU seemed prepared to regulate the food industry and thereby promote public health. There were good reasons to be hopeful: the General Food Safety Regulation establishing the European Food Safety Authority had just been adopted too; the EU was developing the Strategy for Europe on Nutrition, Overweight, and Obesity related health issues; and it was starting to reflect on the provision of food information and the regulation of food marketing to children.
Improving food environments
Fast-forward to 2023: progress seems to have stalled. We may still have a lot of ‘commitments’ from the Commission, but either they are not met, or they rely on public-private partnerships and ‘the exchange of best practices’ rather than the adoption of legally binding measures that create a level-playing field within which food businesses have to operate. Regrettably, three flagship measures that the Commission had promised in the Farm-to-Fork Strategy and Europe’s Beating Cancer Plan to improve food environments seem to have disappeared from its agenda: the adoption of nutrient profiles, the adoption of front-of-pack nutrition labelling schemes, and the adoption of a Framework Regulation on Sustainable Food Systems. Not to mention the EU’s resounding failure, over this 20-year period, to effectively regulate cross-border food marketing to protect children from its harmful effects.
We note a growing gap between EU health rhetoric and the actions it seems able to take to promote better health for all. The giants of the food industry are more successful than ever at preventing any EU-wide regulation that could genuinely promote healthier food environments. This state of affairs is all the more staggering, as we know far more today than we did 20 years ago about the commercial determinants of health, the lobbying strategies that they use, and the impact that they have on public health.
Reducing the gap
So what should the Commission do to try to reduce the gap between rhetoric and practice?
- Firstly, the Commission must respect the rule of law and human rights. The Treaties mandate the EU to ensure a high level of health protection in the development and implementation of all its policies.
- Secondly, a Health in All Policies approach requires that the Commission build a stronger consensus between its different Directorates General and speak with one voice. When health considerations are at stake, the Directorate General on Health and Food Safety should be heard and respected, rather than undermined by potentially more powerful sections of the Commission.
- Thirdly, the process should be guided by evidence, notwithstanding that industry has the loudest voice and the deepest pockets. For example, it is unacceptable, following a meeting it had behind closed doors with the Italian Permanent Representation and the food industry (the Ferrero diplomacy, if you will), that the Commission’s Directorate General on Agriculture felt that it was remotely appropriate to dismiss a significant body of peer-reviewed, rigorous, independent research. Giving way to populism never leads to social progress.
- Fourthly, the Commission should ensure that it adopts robust mechanisms to avoid conflicts of interest. Shouldn’t transparency, trust, and accountability be at the heart of the EU legal order?
- Finally, and very importantly, the Commission should be accountable for the millions of euros of taxpayers’ money it invests to gather evidence. It should use independent, scientific research to drive policies forward, not play in the hands of a few powerful corporate lobbies that only have their profit-making, private interests at heart and do not act in the public interest.
Looking forward
So, what's next? The Commission must do all it can to address, rather than foster, power imbalances. It is a prerequisite if it is to protect better health for all through the effective regulation of the commercial determinants of health. For my part, I do hope that there is at least some cause for celebration throughout the twenty years to come.
Amandine Garde
Amandine Garde is Professor of Law and the Founding Director of the Law & Non-Communicable Diseases Research Unit at the University of Liverpool in the UK. She is also the first President of the Law and Public Health Section of the European Public Health Association (EUPHA). Follow her @AmandineGarde.