Law can be a powerful tool for social change—including policy changes that protect people from unhealthy products such as ultra-processed food and sugary beverages. This Q&A with Isabel Barbosa focuses on the role of law in addressing commercial determinants of health and noncommunicable diseases (NCDs), such as heart disease and Type 2 diabetes, that are driven by unhealthy diets.
Barbosa is Associate Director of the Health and Human Rights Initiative at the O’Neill Institute for National & Global Health Law, and Adjunct Professor of Law at Georgetown University Law Center. The O’Neill Institute is a key partner of Vital Strategies’ Food Policy Program, both working to create healthier food environments worldwide.
Listen to Barbosa and her colleagues on the VitalTalks podcast episode, “Litigating for Health: Challenging the Tobacco and Food Industries.”
What is your role at the O’Neil Institute, and how do you partner with the Food Policy Program at Vital Strategies?
The O’Neill Institute’s mission is to use the law to improve health outcomes for all. Since I joined in 2017, I have been fortunate to witness the birth of a team focused on health and human rights, under the leadership of our directors Oscar Cabrera and Silvia Serrano. In 2020, we launched the Global Center for Legal Innovation on Food Environments, which nowadays takes up a lot of my focus. It seeks to prevent noncommunicable diseases by making sure the environments we live in are conducive to healthier diets, for example, by including warning labels on unhealthy products, challenging certain marketing and advertising practices, and tweaking price incentives and disincentives. We do this in partnership with inspiring organizations within the Food Policy Program, including Vital Strategies.
In the podcast episode, Sasha Stevenson, Executive Director of SECTION27, discusses how the AIDS Law Project in South Africa played a key role in compelling the government to respond to the HIV epidemic. What lessons from the role of law in addressing an infectious disease like HIV, and the subsequent discussions around human rights and the right to health, can be applied to your work combating noncommunicable diseases?
Law shapes many aspects of the fight against any disease, but the HIV epidemic and the social mobilization around it actually led to the birth of health and human rights as a movement. It showcased that the law can be a tool to hold government accountable—including for regulating corporations—delivering the powerful message that people must prevail over profit. In the case of NCD prevention, this is incredibly important. Governments frequently need to be pushed into action to make the environments we live in more beneficial for overall health. One key part of that is reining in corporate power, such as Big Tobacco, Big Food, etc. In the case of food, we cannot simply expect the ultra-processed products industry to change their ways when their core business is harmful to public health, as is often the case.
What legal tools can be used to address NCDs, particularly those linked with consumption of ultra-processed products? How have you and your team been able to confront the immense influence of corporate interests on diets worldwide?
There is a myriad of legal tools available, both at the national and the international levels. While litigation tends to come up first in people’s minds, I would stress that this is one among many options to fight NCDs, albeit an important one.
For example, at the national level, when governments move forward with law and policy, there is a lot of work happening behind the scenes, such as drafting and negotiating language. In these processes, lawyers are constantly asking themselves, “How do we best define ultra-processed products in legal terms? How do we articulate this as a public health issue? How do we ground this in rights-based frameworks and include the necessary safeguards?” Then, at the international level, there is the work of looking at treaties and other international instruments and analyzing what they boil down to when it comes to preventing NCDs. In this regard, lawyers could argue—as they do—that human rights treaties require governments to take action in regulating corporate activity. Lawyers do this by sending shadow reports to treaty bodies and authorities, engaging in thematic and country hearings, answering calls for input, etc.
To sum up, as lawyers, we do a range of things: We engage in the academic debate around these topics, such as by writing articles and attending conferences. We teach and train new generations of lawyers. We work alongside civil society, governments and international organizations in creating and interpreting the law, and we litigate against governments or industry to hold them accountable. It can be a lot, but it is also very dynamic and fulfilling!
Andrés Vélez and Javier Zúñiga discussed front-of-package labeling in Colombia and Mexico during the second segment of the podcast episode. Specifically, their discussion highlighted the role of the food and beverage industry in opposing both the passage and implementation of front-of-package labels. What is one key takeaway from the legal fight to strengthen and preserve these policies that you believe can inform other legal efforts to improve health outcomes?
Don’t fall in the traps set by the ultra-processed products industry. For example, when governments are trying to kick off a regulatory process, the industry will often try to scare them by saying that policies will infringe on investment and intellectual property protections. Past experiences from tobacco control have backed governments in this regard, and yet industry keeps using these threats to create a chilling effect.
Overall, industry tactics have contributed to the legal community playing defense, constantly making the case that governments are indeed allowed to regulate. But Latin American lawyers in particular have really spun this narrative around. They have made the case that not only can governments regulate, but that in fact they must, according to the law. Colombia and Mexico have been inspiring in the way they have played offense and really reframed this legal debate in policymaking, as well as in the courts.
What is one message you would like people to take away from this episode of the Vital Talks podcast?
Law is a powerful tool to give every individual (and especially those who have been made most vulnerable) a better shot at achieving positive health outcomes. In our movement to fight NCDs, we talk all the time about how socioeconomic factors are constantly shaping where and how we are born, grow, work, play, etc., making it easier or harder to live healthier lives. However, we don’t talk enough about how the law underpins so much of our lives. Law and policy shape how cheap or expensive healthy and unhealthy products are, how difficult or easy it is to spot them at a supermarket, how bombarded we are with ads and so on. Bottom line, if we want to make a serious attempt at building healthier food environments, we need to be intentional about how we wield the law to that end—and we definitely need more lawyers engaged!
About the Food Policy Program
The Food Policy Program supports the enactment and evaluation of policy efforts that aim to move people toward healthier diets around the world. The program focuses its work in Brazil, Jamaica, Barbados, Colombia and South Africa. The program works with civil society organizations and research institutions to promote strong policies supported by the best available evidence, including raising taxes on sugary beverages, introducing front-of-package nutrient labels, limiting children’s exposure to unhealthy food and beverage marketing, and promoting healthy food policies for the public sector. With increased public and political support, our partners advocate for policy changes that reduce consumer demand for unhealthy foods and beverages, improve the food environment and make healthier choices accessible to all. Find out more and follow us on X @VitalStrat.