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Will the next generation of preferential trade and investment agreements undermine implementation of the Global Action Plan…

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Health Policy 119 (2015) 88–96

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Health Policy

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Will the next generation of preferential trade and investment agreements undermine prevention of noncommunicable diseases? A prospective policy analysis of the Trans Pacific Partnership Agreement

Anne Marie Thowa,∗, Wendy Snowdonb, Ronald Labontéc, Deborah Gleesond, David Stucklere, Libby Hattersley f, Ashley Schramc, Adrian Kayf, Sharon Friel f

a University of Sydney, Menzies Centre for Health Policy, Victor Coppleson Building (D02), Sydney 2006, NSW, Australia b Fiji National University, Samabula, Fiji1 c University of Ottawa, Ottawa, ON, Canada d La Trobe University, Melbourne, Australia e University of Oxford, Oxford, United Kingdom f Australian National University, Canberra, Australia

a r t i c l e i n f o

Article history: Received 21 March 2014 Received in revised form 21 July 2014 Accepted 1 August 2014

Keywords: Nutrition Trade Policy analysis Policy space

a b s t r a c t

The Trans Pacific Partnership Agreement (TPPA) is one of a new generation of ‘deep’ pref- erential trade and investment agreements that will extend many of the provisions seen in previous agreements. This paper presents a prospective policy analysis of the likely text of the TPPA, with reference to nutrition policy space. Specifically, we analyse how the TPPA may constrain governments’ policy space to implement the ‘policy options for promoting a healthy diet’ in the World Health Organization’s Global Action Plan for Prevention and Control of Noncommunicable Diseases (NCDs) 2013–2020.

This policy analysis suggests that if certain binding commitments are made under the TPPA, they could constrain the ability of governments to protect nutrition policy from the influence of vested interests, reduce the range of interventions available to actively discour- age consumption of less healthy food (and to promote healthy food) and limit governments’ capacity to implement these interventions, and reduce resources available for nutrition

education initiatives. There is scope to protect policy space by including specific exclusions and/or exceptions during negotiation of trade and investment agreements like the TPPA, and by strengthening global health frameworks for nutrition to enable them to be used as reference during disputes in trade fora.

1. Introduction

Achieving coherence between trade and noncommuni- cable disease (NCD) prevention policy, such that neither

∗ Corresponding author. Tel.: +61 2 9036 7003; fax: +61 2 9351 5204. E-mail address: [email protected] (A.M. Thow).

1 At the time of preparation.

http://dx.doi.org/10.1016/j.healthpol.2014.08.002 0168-8510/© 2014 Elsevier Ireland Ltd. All rights reserved.

© 2014 Elsevier Ireland Ltd. All rights reserved.

undermines the other’s goals [1], remains challenging. In 2011, Samoa acceded to the World Trade Organization (WTO) on the condition that the nation remove its ban on turkey tail imports [2]. Although the government of Samoa, a nation with one of the highest obesity rates in

the world, introduced the ban to improve health by remov- ing a low quality fatty meat from its food supply, the WTO rules limit use of policies that act as barriers to trade [3]. A similar nutrition policy constraint occurred when the Thai

lth Policy 119 (2015) 88–96 89

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a t p c m ( o t h t a t p f

t p s m B a m a a m [

i l i p 3 a s r i t a r s i i u i a o t a

Box 1 Definition of trade terms Foreign direct investment: An investment in a country other than that of the investor, involving a long- term relationship and substantial, but not necessarily majority, interest in an enterprise by the investor. For- eign direct investment can take place through direct entry or investment in existing firms. International Investment Agreements are designed to facilitate foreign direct investment (e.g. Bilateral Investment Treaties). Non-discrimination: The practice of not making a distinction in favour of or against certain trading part- ners, or between imported and domestically produced goods, once goods have entered the market. Foreign goods or committed services covered by a trade agree- ment must be treated the same as the identical or ‘like’ domestic good or service. Sanitary and phytosanitary (SPS) measures: Technical barriers designed for the protection of human health or the control of animal and plant pests and diseases. Subsidy: A direct or indirect benefit/incentive granted by a government for the production or distribution (including export) of a good. Technical Barriers to Trade (TBT): Regulations, stan- dards, testing and certification procedures, which can create obstacles to trade. Trade agreement: A negotiated agreement between two or more countries to limit or alter their policies with respect to trade. Trade agreements can be bilat- eral, regional or multilateral. The use of the prefix ‘preferential’ highlights that such agreements favour member parties over non-members by extending tar- iff and other non-tariff preferences. The term ‘trade and investment agreement’ can also be used to differ- entiate trade agreements that include an investment chapter with similar text to international investment

A.M. Thow et al. / Hea

ood and Drug Administration proposed a law intended to educe children’s consumption of unhealthy snack foods y requiring that the warning message ‘Children Should ake Less’ be displayed in red text on the packaging of hese products, as well as traffic-light coloured symbols or energy, sugar, fat and sodium content. After some WTO

embers raised concerns over the labelling plan in the ommittee on Technical Barriers to Trade, one of the WTO’s 0 agreements, the regulation was delayed and in 2011 n industry-preferred option – Guideline Daily Amount

thumbnail’ labelling – was mandated instead [4]. These are two examples of how trade agreements can

ffect the ability of governments to implement effec- ive policies to improve diets and prevent NCDs, and rovide an indication of how trade agreements might onstrain countries’ abilities to implement the recom- endations outlined in the World Health Organization’s

WHO’s) Global Action Plan for the Prevention and Control f NCDs, 2013–2020 (NCD Global Action Plan) [5]. While he WTO has increasingly recognised the importance of ealth concerns in trade disputes, particularly in relation o tobacco [6], bilateral and regional trade and investment greements often contain provisions that exceed those of he WTO agreements and have much less transparent dis- ute settlement mechanisms (which limits the opportunity or precedent) [7].

Trade and investment agreements can play an impor- ant role in providing fair treatment and a predictable olicy environment for companies, and may also, in ome circumstances, provide opportunities for govern- ents to resist domestic lobbying by local industry.

ut they also constrain the domestic policy space avail- ble to national governments (the ‘freedom, scope, and echanisms that governments have to choose, design,

nd implement public policies to fulfil their aims’ [8]), nd can thus affect the autonomy of national govern- ents in policy-making across all sectors of government

7,9].

Policy analysis can help to identify possible areas of ncoherence between binding trade policies and other egitimate aims of government [11–14]. Indeed, efforts to mprove nutrition and prevent NCDs have a recognised otential for conflict with trade policies. During the past 0 years there has been significant growth in global trade nd investment in highly processed foods (often high in alt, saturated fat and sugar, and associated with diet- elated NCDs) [15,16], as well as cross-border investment n food retail, advertising and promotion [17,18]. This rade and investment has contributed to increased avail- bility, accessibility and affordability of less-healthy foods elative to healthy foods, and has been associated with hifts to poorer nutritional quality diets [19–22]. The ‘pol- cy options for promoting a healthy diet’ recommended n the NCD Global Action Plan will apply to the prod- cts of trade and investment, which are also governed by

nternational trade agreements. With binding international

greements to liberalise food-related trade and investment n one hand, and non-binding international commitments o NCD prevention on the other, there is potential for trade nd investment agreements to trump health policy and

agreements. Source: Adapted from Thow [10]

constrain or limit national efforts to improve diets and prevent disease. This effect has been documented in other areas of public health such as tobacco control and access to medicines [8,23–27], but to date there has been no sys- tematic analysis of the effects of new preferential trade and investment agreements on policy space for promoting healthy diets [28].

This paper aims to help address that evidence gap. Our policy analysis considers (1) how the Trans-Pacific Partner- ship Agreement (TPPA) and other preferential trade and investment agreements may constrain governments’ pol- icy space to operationalise the NCD Global Action Plan ‘policy options for promoting a healthy diet’, and (2) oppor- tunities to improve policy coherence between trade and public health in this context.

Countries currently involved in the TPPA negotia- tions, which are reportedly due to conclude in 2014, include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States of America (USA) and Vietnam. The TPPA is

seen by countries involved as the model for ‘21st century trade agreements’ and will likely set a precedent for further expansion of trade and investment provisions into national policy space [29]. To some extent, the TPPA also represents

90 A.M. Thow et al. / Health Policy 119 (2015) 88–96

Table 1 Analytical framework and overview of findings: Trade and investment agreement inclusions with potential implications for nutrition policy space, based on the policy options in the WHO NCD Global Action Plan.

Preferential trade and investment agreement inclusions

WHO NCD Global Action Plan

Protecting policy making from

vested interests

Specific policy options to improve

healthfulness of food supply (reduce less healthy food

options)

Specific policy options to improve

healthfulness of food supply

(increase healthy food options)

Policies to support institutional action

and consumer education

Chapters in KORUS

1. Initial Provisions and Definitions 2. National Treatment and Market Access

for Goods 3. Agriculture 4. Textiles and Apparel 5. Pharmaceuticals and Medical Devices 6. Rules of Origin and Origin Procedures 7. Customs Administration and Trade

Facilitation 8. Sanitary and Phytosanitary Measures 9. Technical Barriers to Trade 10. Trade Remedies 11. Investment 12. Cross-Border Trade in Services 13. Financial Services 14. Telecommunications 15. Electronic Commerce 16. Competition-Related Matters 17. Government Procurement 18. Intellectual Property Rights 19. Labor 20. Environment 21. Transparency 22. Institutional Provisions and Dispute

Settlement 23. Exceptions New additions proposed for TPPA Regulatory Coherence State-Owned Enterprises E-Commerce Competitiveness and Supply Chains

(includes harmonisation) Small- and Medium-Sized Enterprises

the trend towards ‘economic integration’ agreements, with significant efforts to harmonise ‘behind the border’ regula- tion [30].

Publicly available information on the TPPA negotiations is limited by the secrecy of the negotiations, although the USA reports that the draft negotiating text draws heavily on the bilateral agreement between the USA and the Republic of South Korea (‘KORUS’) which entered into force in 2012 [29]. Therefore, we have used the final text of KORUS [31] as the basis for the policy analysis framework, supplemented by leaked draft text of the TPPA, commentary and analy- sis of this leaked text by academics and non-government organisations, and other publicly available information on the TPPA negotiations, for example, from the USA Congres- sional Research Service, which publishes regular updates (e.g. [29]). Preferential trade agreements involving the USA

tend to use a template approach, building on each suc- cessive agreement to continually extend the provisions contained in the agreements of the WTO. Basing our anal- ysis on the most recent preferential trade treaty (KORUS)

provides a reasonable indication of the likely inclusions in the TPPA.

We approached this research from a prospective pol- icy analysis perspective [32], and have drawn on ex-ante policy appraisal techniques [33,34] to analyse the trade and investment provisions as they apply to public health nutrition policy space. The WHO Global Action Plan for the Prevention and Control of NCDs 2013–2020 has been sub- ject to extensive international review and was approved at the 2013 World Health Assembly [5]. It contains current best-practice policy options for ‘promoting a healthy diet’ for the prevention of NCDs. Our analysis was also informed by literature regarding implications of trade and invest- ment agreements for policy space in public health more broadly [8,23–28].

Table 1 presents a summary of the analytic framework

and key findings. For the purpose of analysis (and to reduce repetition in the Findings section) we grouped the policy options outlined in the Global Action Plan according to their focus (see subheadings in Box 1).

A.M. Thow et al. / Health Policy 119 (2015) 88–96 91

Box 2: Global Action Plan for the Prevention and Control of NCDs 2013-2020: policy options for member states to promote healthy diets Broad recommendation for nutrition policy, including protection from vested interests: 38. Member States should consider developing or strengthening national food and nutrition policies . . .while protecting dietary guidance and food policy from undue influence of commercial and other vested interests Policy options to improve healthfulness of food sup- ply: 39.(c) Develop guidelines, recommendations or pol- icy measures that eng