Public Health and Nutrition: The Next Frontier at the SPS Agreement

As recently as September 2015, world leaders convened at the 69th United Nations (UN) General Assembly in New York City to agree on seventeen sustainable development goals that will shape the global policy agenda for the next 15 years. Although no one goal has been adopted with a priority over the other, improving nutrition and ensuring healthier lifestyles have been identified in the top-five core objectives. However, the legal risks associated with the adoption of measures based on inconclusive science (as it is the case with measures addressing unhealthy diets and nutritional requirements) is potentially high, and their unintended effects on market access, rather difficult to foresee. For the purposes of this article however and albeit its non-exhaustive character, this analysis will focus on the role played by the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) in promoting or preventing the adoption of domestic public health measures that aim at reducing the impact of NCDs by means of nutritional composition requirements that address saturated fats, sugars and salt. In doing so, this article is structured as follows: Section II will examine whether the SPS Agreement finds application in cases where domestic measures addressing nutritional requirements are challenged in the WTO dispute settlement system. In order to determine SPS applicability, the treaty text will be examined in conjunction with available case law. Section III will address whether and to what extent SPS measures on nutritional requirements as identified in Section II may posed non-tariff barriers to trade. While doing so, this section will also explore the role of international standards as basis for domestic regulation. Section IV will ex-amine the triple threshold established under Article 2.2 of the SPS Agreement to identify the legal standard of review that domestic measures must display in order to comply with the SPS Agreement. It will further address the significance of risk assessments and their symbiotic relation with scientific principles. Section V will conclude with some legal implications by transposing the findings in the previous sections to the context of unhealthy diets and measures adopted to promote consumption of healthier foodstuffs.