Legal briefing: protection on the menu

Child obesity is increasingly perceived as a major public health issue.

But, crucially, it is also becoming a major global child-rights concern. And this is important: a child-rights approach to obesity increases the urgency for states to address the underlying determinants of health and effectively regulate the food industry. This is because the UN Convention on the Rights of the Child increases the legal mandate that states have to protect children’s right to health and other related rights.

However, the role of the law in the promotion of healthier diets is multifaceted. Legal rules must be integrated within an existing set of rules. The hierarchy of legal norms requires that laws on food labelling, food marketing or food taxes, for example, comply with higher laws, not least constitutional rules and those derived from international trade and investment law. States therefore need to understand the legal constraints within which they operate.

The food industry has developed tactics to oppose legal rules that may not be in its interests – in other words, that impede its ability to make profit. In particular the industry engages in costly litigation to challenge such rules. But states should not be intimidated: a rights-based approach to child obesity actually mandates that they act where public health so requires.

Nevertheless, strong political will alone won’t create laws that can effectively promote healthier diets: states must also learn to anticipate legal challenges from the food industry. They should work from the earliest stage of the policy process with lawyers who can help them adopt obesity-prevention measures that can withstand legal challenges. They will need to bear in mind that rights (including the child’s right to health) are rarely absolute. Lawyers will help them understand how children’s rights can be balanced against the competing rights and interests that the food industry could invoke.

To achieve its objective regulation must be tailored. The key legal principle of proportionality requires that a measure must be suitable to achieve the objective pursued – and it must not exceed what is necessary to do so. For example, if a measure purports to protect children from the harmful impact of unhealthy food marketing, a state will

need to identify what falls within the category of unhealthy food. A ban on the marketing of all food would be excessive as it would prevent businesses from promoting even healthy food.

Understanding the margin of discretion a state has to protect the health of its citizens is complex. It requires engaging with lawyers to ensure balance, applying case law to the circumstances of each case.

The tide is turning in understanding legal constraints to effectively prevent childhood obesity. The law is increasingly used as a sword to regulate the food industry rather than merely as a shield to defend specific measures from industry-led legal challenges.

Ultimately, the more the constraints imposed by the law are understood, the more a state can maximise the opportunities it offers to effectively prevent child obesity in the UK and beyond.

Amandine Garde is Professor of Law and founding director of the Law & Non-Communicable Diseases Research Unit at the University of Liverpool.

This article is adapted from one that appeared in the December 2019-January 2020 issue of EHN (login required).