The Millennium Development Goals and the Framework Convention on Tobacco Control serve as helpful models when considering ways of strengthening the global response to non-communicable diseases.
Global targets for reductions in chronic diseases?
At first glance, WHO's Global Strategy on Diet, Physical Activity and Health (GSDPAH) shares similarities with the MDG process. WHO is the obvious "political champion" for the strategy, which proposes: "an ad hoc committee of partners within the United Nations system", as well as links with NGOs and the private sector .
The MDG model suggests that the challenge for WHO, if adopting a partnership approach to the GSDPAH, is to successfully link implementation to the core functions – and resources – of partner agencies. One way to achieve this is to integrate non-communicable diseases into an existing global health partnership. Commentators have suggested that the MDGs should expand to include non-communicable disease targets. There have been calls to broaden the child mortality focus of the MDGs to include adult mortality and morbidity, either as a separate goal in its own right, or as a target falling under Goal 6, which aims to "combat HIV/AIDS, malaria and other diseases" [29, 63, 99]. The contribution that tobacco control policies can make to the MDGs has been emphasized [54, 100], and commentators have also stressed the link between chronic diseases and poverty reduction .
The Millennium Development Goals have achieved broad acceptance as a framework for measuring and achieving social development. This may be reason enough for caution in tinkering with them, or seeking to re-cast them mid-stream. An additional set of UN-sponsored health targets could undermine the status the MDGs have managed to achieve as global priorities and aggravate existing difficulties in progress towards them [54, 82, 102, 103]. The UN Secretariat is fully invested in the MDGs and unlikely to take on new responsibilities around chronic diseases.
This has not stopped public health advocates, and WHO itself, from advocating a global goal of reducing death rates from chronic diseases by 2% annually, resulting in 36 million fewer deaths by 2015 [27, 29]. The difficulty is that goals are ends, rather than means . To achieve global goals requires the simultaneous action of many countries: each making budgetary commitments, implementing policy changes, and monitoring outcomes in order to achieve real results on the ground.
The importance of linking global goals to legal, economic, or multilateral political processes can be illustrated by contrasting WHO's Commission on Macroeconomics and Health with World Bank concessional (IDA) credits. In its 2001 report, the Commission recommended the establishment of national commissions to lead the process of scaling up access to essential health services . This process has also been identified as providing the opportunity to include strategies for cardiovascular disease , and to adapt MDG targets to the health priorities of individual countries . By 2006, only 20 countries had established national commissions or used existing bodies to strengthen health policy reform .
For World Bank borrowers, the Poverty Reduction Strategy Paper (PRSP) process requires countries seeking concessional financing to identify their national development priorities in a PRSP. The Bank and the IMF exercise considerable real-world influence over these country-level priorities. In a recent review, both agencies echoed a call by the UN Development Program to use the PRSP process as a vehicle for scaling up country-level efforts to achieve the MDGs [53, 74, 75]. The PRSP process could also provide an operational framework for setting out the strategies required to meet national goals on non-communicable diseases. The advantage of the PRPS process is the economic incentive it creates to take concrete actions in support of national priorities.
Appropriate global partners?
The advantages of a partnership approach to global health challenges include greater access to expert input and advocacy from policy partners, greater publicity for policy goals, and greater opportunity for engaging at country level beyond traditional WHO-Health Ministry relationships. The GSDPAH identifies a wide range of potential partners including ECOSOC, the ILO, UNESCO, and the WTO. There are some clear synergies; for example, with the Food and Agricultural Organisation (FAO) around promoting the supply and consumption of fruit and vegetables , and with UNICEF, around children's diets, nutrition education, and food marketing. Given its strong human rights focus, UNICEF could be an important ally in advocating a restrained approach to industry marketing, reprising the role if played during development of the International Code of Marketing of Breast-Milk Substitutes .
The Codex Alimentarius Commission, as the body responsible for developing global food standards, has been identified by WHO as an important partner in the GSDPAH . This partnership is significant since countries implementing Codex standards are presumed to be acting consistently with GATT and the SPS Agreement [96, 97]. FAO/WHO have highlighted the role that the Codex Committee on Food Labeling might play in developing guidelines on the use of consumer-friendly nutrition labeling and health claims . They have also pointed to the role that the Codex Committee on Nutrition and Foods for Special Dietary Uses could play in developing food composition standards . Codex is awaiting a joint WHO/FAO paper outlining concrete proposals that it might take .
It is highly uncertain whether the involvement of Codex will contribute to progressive global standards, given its reputation for being dominated by industry [110, 111]. Historically, Codex – like national food regulators – has focused on food safety, rather than nutritional quality. On one view, there is limited scope for WHO to address issues falling within the Commission's authority, since conflicting WHO/Codex standards could create confusion, and might undermine WHO's position, given the status of Codex standards under WTO rules . However, this criticism could also be made of WHO's marketing code for Breast-Milk Substitutes . Rather than risk abandoning important areas of diet and nutrition to Codex, WHO could make a virtue out of Codex' technical and historically more limited role, seeking Codex input while nevertheless retaining ownership of the key areas of labeling, health claims, and food composition standards for trans and saturated fats, salt and free sugars. As with the FCTC, there is strategic benefit in locating standards development within a forum where health issues predominate.
As noted above, the World Bank could be an important partner for implementing the GSDPAH, especially given its greater financial resources. There are several areas where the GSDPAH overlaps with World Bank investments in health, nutrition and population (HNP). The first is in tobacco, where the Bank's work on the economic benefits of tobacco control policies, including tobacco taxes, complements WHO's desire to encourage implementation of the FCTC . Secondly, the Bank has staked out nutrition as a priority. The Bank acknowledges that obesity is part of the nutrition policy agenda , and diet-related interventions are a cost-effective way of preventing cardiovascular disease [9, 115]. As with tobacco, it makes sense to pool WHO's technical and policy experience with the Bank's resources and country-level knowledge wherever possible. Thirdly, the new HNP strategy for the Bank makes public health surveillance and health system performance monitoring a priority . Besides permitting better evaluation of the Bank's own programs, enhanced surveillance cannot but call attention to the growing burden of chronic disease. Finally, as noted above, the Bank could require concessional borrowers to address non-communicable diseases within their Poverty Reduction Strategy Papers.
While partnerships between international agencies primarily enhance links with government, NGOs and civil society networks have a broader role. Besides pressuring governments to implement healthy policies, that role can extend to pressuring the private sector for access to healthier foods, sharing information, and influencing consumers directly in ways that reduce lifestyle risk factors and shape market demand . The GSDPAH expresses high hopes for partnerships with civil society, NGOs and the private sector, but their assistance in advancing the strategy appears to be modest so far .
Are partnerships with the processed food industry a good idea?
In contrast to the tobacco industry, WHO has welcomed the food industry as a partner, citing its capacity to develop healthier products and to encourage healthier choices [21, 117]. This is a high-risk strategy, given well-publicised attempts by the United States, acting on behalf of its sugar industry, to weaken the GSDPAH during its development [47, 118]. In 2006, a study of global food manufacturers, retailers and food service companies concluded that only a minority had altered their business practices in response to the GSDPAH. Of the 25 corporations studied, ten had taken action on salt, five on sugar, four on fat and eight on trans fats, but only two on portion sizes . In Europe, the EU Platform for Action on Diet, Physical Activity and Health has, since March 2005, provided a forum for the food industry, as well as NGOs, medical and consumer groups, to make public commitments on measures to reduce obesity and to improve diet and physical activity [120–122]. For example, nine soft drink makers have undertaken not to advertise soft drinks to children aged 11 or less, reaping high praise from the European Health and Consumer Protection Commissioner . In the United States, the Alliance for a Healthier Generation, a joint initiative of the American Heart Association and the William J. Clinton Foundation, has negotiated voluntary agreements with three large beverage markers, and five large snack food makers, to comply with new school beverage and competitive food guidelines in their marketing to 123,000 schools nationwide [124–127].
If partnerships between global health agencies, governments, and the private sector yield tangible outcomes, so much the better. Pursuing voluntary commitments is cheaper and faster than the difficult process of standards-setting. However, short-term gains should not be confused with the trans-generational challenge of improving global diets. At the population level, a reduction in the burden of chronic disease requires reduced consumption of high-sugar, high-fat, high-salt foods, and increased consumption of fresh fruit and vegetables – in most countries in the world.
The dilemma for the processed food industry is that "'good' foods are bad commodities with low profit margins while 'bad' foods are good commodities with high margins" . It is difficult for consumer demand to drive industry improvements when that demand is itself skillfully manipulated by vast advertising expenditures exceeding WHO's annual budget many times over . It is perfectly rational for global food companies to cooperate to the degree necessary to enhance their reputations and to avoid threats of regulation while nevertheless protecting established markets for energy-dense foods of poor nutritional value.
Should there be global legal standards on diet and nutrition?
Leading public health advocates have shown little enthusiasm for using treaties to progress a global strategy on diet, nutrition and physical inactivity [5, 129, 130], although this view has been challenged [88, 131, 132]. WHO's preference for a voluntaristic approach may rest on several assumptions: that partnering with industry is the most effective way of aligning commercial incentives with consumer health interests, that regulation will destroy communication channels with business, and that regulatory options are not politically feasible and could backfire. WHO's reluctance may also reflect the fact that the determinants of nutrition and obesity-related disease are complex and cannot easily be reduced to legal principles, and perhaps that the evidence base for intervention is less robust than in tobacco control.
Like tobacco, nutrition and obesity-related diseases develop over a considerable period of time. Commentators point out, however, that unlike tobacco, food is not hazardous per se, except when perished or adulterated . This distinction directs attention away from the constituents of individual foods and beverages, towards lifestyles and dietary choices. The food industry argues that the solution lies with the individual (more physical activity, wiser food choices), assisted by wider product choice where consumer demand makes this commercially viable. What cannot be denied is that if high-fat, high-salt, high-sugar foods are "hazardous when consumed [too] frequently" , then reducing the hazard means either altering the products that are (over)consumed, thereby potentially interfering with their market appeal, or intervening with supply and demand in ways that reduce consumption levels. Each one of these strategies: changing product composition, influencing demand for, or regulating the availability of, food products, puts markets at risk.
Voluntary commitments by industry are welcome and should be accepted whenever offered. But public health stakeholders should be aware that business corporations are not constituted to act sacrificially in pursuit of worthy aims. "Forbearance" from pursuing certain kinds of sales opportunities may prevent damage to – or even enhance – a company's reputation. To that extent, investments in corporate social responsibility can bring economic benefits. As Redmond points out, business corporations may engage in social and human rights entrepreneurialism, competing for consumers or investors "by means of signaled respect for human rights standards in company operations" . Corporations may also embrace voluntary codes and principles to forestall the risk of more intrusive or costly forms of regulation in future . Company executives may be well motivated and keen to make the world a better place. But corporations have little incentive to re-shape public tastes and existing product lines, as distinct from offering marginally "better for you" variants, when doing so risks sacrificing existing markets and provides opportunities for competitors. Regulation has the advantage of creating a level playing field; while food companies may not like regulation, they understand it and will usually absorb it into their operations as efficiently as they can.
Clearly, not all aspects of diet, nutrition and physical activity are appropriate subjects for legal standards, even aspirational or broadly-stated ones. For example, physical activity and food choices at the individual level are a matter for personal choice, except in schools. Food security, and the provision of fresh fruit and vegetables at affordable prices, are more likely to be a matter for national policy and coordination across the agricultural, finance, trade, employment, transport and health sectors, rather than legal prescriptions. Strategies to encourage physical activity and healthy eating may also, appropriately, vary from country to country. There are four areas, however, where the development of global standards could leverage the Global Strategy beyond a purely voluntary menu of policy options for governments.
The first area relates to the informational basis for making informed and healthy food choices: standards for the labeling of product constituents, fair warning of health risks, and health claims. Accurate information in rapidly-digestible formats could enhance competition for healthy products. In so far as markets have failed to provide consumers with sufficient information, or have perverse incentives to obscure such knowledge, regulation may be justified as a "public good" .
Domestic laws implementing global standards in this area would need to be consistent with that country's WTO obligations. As noted above, the WTO Panel report in the EC-Biotech Products case suggests that a particular legal requirement might be considered to embody both an SPS and a TBT measure, although justification of the measure under either Agreement will be sufficient . To the extent that national laws embodying or requiring compliance with international standards on labeling were enacted in order to inform consumers, or to avoid confusion or misleading impressions, they would be "rebuttably presumed not to create an unnecessary obstacle to international trade", under the TBT Agreement .
In some cases, labeling requirements and health warnings might also be characterized as intending to warn consumers of the health risks of over-consumption of product ingredients, such as salt, sugar or fat. The SPS Agreement applies to measures that are intended to mitigate risks to human life or health arising from "additives, contaminants, toxins or disease-causing organisms". In the EC-Biotech Products case, the Panel distinguished between foods that posed a danger to the life or health of the customer, and foods that were nutritionally disadvantageous due to the quality or quantity of their nutrients, but without necessarily presenting a danger to the health of the consumer. The Panel made it clear that the SPS Agreement only applies to laws seeking to address a "danger for the consumer" .
This approach supports the argument that laws seeking to mitigate the risks of harmful diets by warning consumers about the (poor) nutritional quality of a food, would not be SPS measures, although they might well fall for consideration under the TBT Agreement. It follows that the question of whether salt, sugar or fat can be described as an "additive" creating a risk to human health, within the terms of the SPS Agreement, will not arise. In any event, the Panel interpreted "food additive" to mean a substance "not normally used as a typical ingredient" in food, which would seem to exclude sugar, salt and fat . It seems likely that future WTO Panels would follow this interpretation, since it avoids framing diet-related harms in terms of the intrinsic properties of salt, sugar and fat in food, as distinct from their nutritional impact over time. The end result is that health warnings about the nutritional quality of food are likely to be treated as TBT measures.
The second area for the development of international standards relates to food composition. Estimates from the Global Burden of Disease Study indicate that high blood pressure, high cholesterol, and overweight and obesity, respectively, were responsible for 46%, 24%, and 11% of global mortality from cardiovascular disease in 2001, and almost equivalent shares of CVD morbidity . There is an established relationship at the population level between salt intake and blood pressure, and between dietary fats and cholesterol, blood pressure and weight . Applying the distinction made by the Panel in the EC-Biotech Products case, evidence-based regulations or recommendations on food composition, based on dietary risks to health at the population level would likely be treated as TBT measures. National legislation implementing such measures would bind multinational food corporations and other food producers, and could improve dietary balance by reducing the intake of trans and saturated fats, salt, and sugar, at the population level.
A third possible area for legal intervention relates to children's health, nutrition and education and, more controversially, food marketing to children. Despite the reluctance of many governments to interfere with market processes, there is wide acceptance that the vulnerability of children supports protective regulation. WHO's International Code of Marketing of Breast-milk Substitutes already bans promotion of breast-milk substitutes . A recent WHO-sponsored forum and technical meeting concluded that self-regulation of food and beverage marketing directed at children is unlikely to be effective, and recommended that WHO develop an international code addressing promotional activities by transnational companies irrespective of country . In so far as "the origins of obesity and NCDs such as cardio vascular heart disease and diabetes...lie in early childhood", regulations aimed at enhancing children's nutrition would be highly cost-effective [114, 139].
A fourth area for global standards relates to surveillance of chronic disease risk factors and the obligation to report on progress in implementing policies on non-communicable diseases. Reporting provisions can help to maintain commitment towards tackling longer-term problems and enhance the implementation of both legal and non-legal aspects of a global strategy. Periodic reporting also provides a focal point for the participation of civil society .
One criticism of the GSDPAH and of WHO's framework for implementation  is that it anticipates purely voluntary measures at a time when developed countries are debating and experimenting with legal strategies to combat obesity and chronic diseases in precisely the areas identified above. For example, Denmark has outlawed the use of trans fats in food . New York City has banned artificial trans fats in restaurant cooking [142, 143], and requires the provision of calorie information on restaurant menus . The Food Safety Authority of Ireland is negotiating salt commitments with food businesses , while in the United States, public health bodies are lobbying for the Food and Drug Administration (FDA) to regulate salt as a food additive [146–148]. Britain's telecommunications regulator, Ofcom, has banned television advertising of foods assessed as high in fat, salt or sugar during children's programs [149, 150]. Similarly, the European Charter on Counteracting Obesity specifies that EU governments should adopt specific regulatory measures to "substantially reduce the extent and impact of commercial promotion of energy-dense food and beverages" to children, moving towards an international code of practice in this area . The United States is a social laboratory for a variety of legal responses to obesity [151, 152]. Congress has imposed conditions on federal grants funding school breakfast and lunch programs that require compliance with nutrition guidelines and nutrition education within the curriculum [153–155].
The use of law as a process for developing global standards for diet and nutrition needs to be distinguished from the use of law as a process for implementing those standards at the domestic level (through legislation). Ultimately, whether developed countries pass domestic laws in the areas identified above, or secure the health of their populations in other ways, is not the point. The point is that global standards provide a baseline for responsible transnational corporate behaviour. Appropriately implemented at country level, binding international standards on diet and nutrition will make the health of future generations less dependent upon corporate charity and voluntary commitments. It will also reduce the "regulatory gap" that might otherwise emerge between developed and developing countries, due to the vulnerability of the latter to pressure from large transnational corporations.
If not a treaty on diet and nutrition, then what?
Regulatory approaches to diet and nutrition need not imply the replication of the FCTC approach to the food industry . Any attempt to mirror the FCTF approach by consolidating the regulation of food composition, labeling, health claims, food advertising and children's health and nutrition into a single instrument would likely fail due to political divisions and industry opposition. While progress on all these fronts is desirable, each element also has value in itself. By keeping issues separate; for example, by developing separate standards for salt, fats, and sugar, labeling, and marketing, WHO could more effectively maintain the focus on evidence in each case, and limit engagement to those whose interests were directly affected by the standards in each case. One hopes, for example, that an instrument on salt would not be thrown off course by lobbying for and on behalf of the sugar industry. This multi-track approach need not, however, limit the influence of NGO and consumer groups. Issues where the evidence is strongest should be tacked first. All issues should be framed as components of a broader global strategy on non-communicable diseases comprising "hard law", "soft law", and purely recommendatory elements.
WHO has an unambiguous constitutional mandate to "develop, establish and promote international standards with respect to food, biological, pharmaceutical and similar products" . While WHO's treaty-making power is expressed in general terms to extend to any matter within its competence, its power to make regulations extends to specific, enumerated areas [55, 132]. WHO's regulations power extends to making advertising and labeling standards, and standards with respect to the safety, of "biological, pharmaceutical and similar products moving in international trade" . If "similar products" includes food, then WHO's power to make regulations in these areas seems assured; on balance, however, a narrower interpretation seems likely. A more promising basis for developing standards on diet and nutrition depends on whether such standards come within the terms of: "sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease" (Article 21(a)). If "disease" is given a narrow meaning, to exclude chronic, diet-related diseases, then WHO would be required to either use its treaty power (Article 19), or to make non-binding "recommendations" (Article 23). Ultimately, the scope of Article 19 will depend on whether a political consensus can be reached among World Health Assembly members.
At the present time, it may seem novel to talk about national and international laws for fighting heart disease, diabetes and other chronic diseases. However, non-communicable diseases are highly unlikely to remain a "law-free zone" over the medium term. Even assuming that no consensus can be reached on the use of WHO's treaty or regulations power, the development of recommendations preserves the obligation of states to report to WHO periodically (Article 62), and WHO could publicly state its aspiration to consolidate recommendations in this area into a legally binding instrument at a later date.
In summary, the opportunities for using international law as a process for implementing the GSDPAH have been underestimated. The transnational factors influencing dietary trends, and the degree of control that transnational corporations exercise over global diets, support a global standards approach. At the same time, diet and nutrition are more complex and nuanced than tobacco. Law is an important global process, but not the only one. The development of legal standards in key areas could strengthen a wider strategy on non-communicable diseases comprising legal and policy elements, with careful use of partnerships and economic incentives.