Front-of-Pack Nutrition Labelling: are Health Policy Decisions Reconcilable with the WTO Disciplines?

Over the past decade, States have increasingly used various forms of front-of-pack nutrition labelling to prevent the proliferation of obesity and related non-communicable chronic diseases. Some forms of front-of-pack nutrition labelling highlight increased amounts of certain nutrients in foods and are mandatory for compliance. The growing popularity of such measures raises serious concerns amongst the Members of the World Trade Organization, since, to date, no position has been formed on the conformity of such labelling with the core disciplines of the WTO. This article attempts to reach that understanding and to suggest how national legislators may adjust their labelling initiatives so as to bring them in line with the WTO Agreement on Technical Barriers to Trade (TBT Agreement). Section 1 the paper analyses Art. 2.1 of the TBT Agreement (principle of non-discrimination) and concludes that the legislator should take into account all dietary options in order to avoid discriminati on against certain types of foods. Unpackaged goods should also be covered by regulatory interventions, since by nutritional composition they are similar to pre-packaged foods. Section 2 looks at Art. 2.2 of the TBT Agreement (principle of necessity) and summarises that the adopting Member has to be cautious when setting the goals of the labelling measure, since demonstration of its necessity would further require to separately establish what contribution to any of the stated objectives the measure makes. Moreover, the WTO Member must determine how labelling schemes discourage consumption of various nutrients. Otherwise, there may be a problem in demonstrating the expected regulatory results. The anticipated contribution of front-of-pack labelling could be enhanced by creating a supporting environment of regulatory interventions. Section 3 focuses on Arts. 2.4 and 2.5 of the TBT Agreement (harmonisation principle) and concludes that current international standards recognize the relevance and authority of regional studies, including those examining dietary patterns of locals. Nonetheless, this does not exempt the WTO Members from the need to provide a scientific justification for how the measure relates to the consumption of particular foods and nutrients.