Results are reported for each form of regulatory chill (anticipatory, response and precedential) and comparisons are drawn between any identified chilling effect generated by a perceived risk of an investor-state versus a WTO state-state dispute. We also report identified concessions on public health regulations made during trade negotiations. Finally, conditions that may increase the risk of, or protect against, regulatory chill are described.
Limited consideration of investor-state dispute risk during nutrition and alcohol policymaking
While health policymakers in higher-level positions (and with a broad understanding across NCD policy areas) were aware of the specific risk of an investor-state dispute in relation to tobacco control (given the recent ISDS cases brought against Australia and Uruguay), this awareness or perceived risk had generally not spilled-over into nutrition and alcohol policymaking spaces. Most policymakers exclusively involved in nutrition or alcohol policymaking within the DoH were not specifically aware of the risk of investor-state disputes and did not differentiate between obligations within trade agreements and BITs or different legal fora – WTO, international investment arbitration or domestic litigation. Although aware of South Africa’s international investment obligations, one technical officer within the DoH commented:
“It [the threat of an investment dispute] is not something that we have considered I must say, so it is difficult to comment on. I am aware of the tobacco issues. But in this case of alcohol, not at all. It’s not something that has been on the table.” [DHA1].
Nutrition and alcohol advocates within CSOs and NGOs broadly lacked awareness of South Africa’s international investment obligations and exposure to potential investor-state disputes.
However, various trade and health policymakers confirmed that all public health regulations were vetted by state legal advisors to ensure compliance with South Africa’s constitutional and international legal obligations, including under existing trade agreements and BITs. One trade official commented, for example:
“there is an enormous amount of resources that go into this … to say what are the trade effects? And then you’ve got to make a judgment in terms of the agreements to say yes you can do it for these reasons, but you have to do it in the way that least restricts trade” [DTI3].
A nutrition policymaker within the DoH also stated:
“we make sure that whenever we come up with legislation, our lawyers will get that, and should there be any sign of any possible disputes, they would have to advise that this might impact in terms of trade [or investment obligations].” [DHN1].
This suggests that despite limited awareness amongst most but not all nutrition and alcohol policymakers, there was some cursory awareness of investment-related risk assessment being internalized in the policy development process with the potential to generate a degree of anticipatory chill.
Internalization of trade dispute risk in nutrition and alcohol policymaking
In contrast to limited awareness of international investment obligations and risk of ISDS, health policymakers were generally aware of the risk of generating ‘trade concerns’ from trading partners and industry or potential escalation to a formal WTO dispute if health policy was not compliant with South Africa’s trade obligations. Policymakers described that compliance with WTO rules had contributed to the internalization of a number of principles during policymaking, particularly for trade-sensitive regulations (e.g. nutrition and alcohol health warning labelling). These included revising the regulation to ensure it is as least trade restrictive as possible, adopting a strict evidence-based approach to policymaking and when local evidence was not available, ensuring policies aligned with international standards or guidelines. Following these principles were considered by trade actors not to restrict regulatory space for nutrition and alcohol harm reduction. One trade policymaker explained, for example:
“If the DoH identifies the need for some kind of you know labelling … it will be done because it’s been identified as a need and then that will be a scientifically grounded decision … they will ask us what the implications are for trade and they will make sure that the way that it’s carried out in a manner consistent with our obligations. And if we are clear that its consistent with our obligations … that it’s evidence-based … that it will be applied to deal with the particular health problem then we will be able to convince our principal and proceed” [DTI02].
However, internalizing these principles in health policy processes to comply with trade rules was reported by health policymakers to limit the scope of policies and policy design options available; delay the policy process; and was burdensome on limited DoH resources. As such, trade obligations generated a significantly greater anticipatory-type chilling effect on nutrition and alcohol regulation than South Africa’s investment obligations. One DoH policymaker remarked for example:
“...we’ve now got to work harder in terms of how we’re then going to defend, how we approach this because whatever we put on the label, it can’t hinder any trade.” [DHN2].
Alcohol and food labelling were particularly recognised as potential technical barriers to trade and ensuring these and any other trade-sensitive health regulations were as least trade restrictive as possible was internalized in policy development. Unacceptably high costs of implementing a regulation for THCCs importing into South Africa were particularly mentioned as a technical barrier to trade. As such, minimizing the cost to importers of a heath regulation during policy development was considered important, particularly by trade policy actors and was a potential driver of policy non-decisions. For example, as one trade policymaker commented when asked whether nutrition labelling would be considered a technical barrier to trade:
“… it also depends on what the manufacturers, the cost for them will be, and for trading partners and the manufacturers in other countries from where we import, what their views are” [DTI1].
Trade obligations and concern to avoid triggering informal trade challenges that may escalate to formal disputes have contributed to the internalization of a strict ‘evidence-based’ approach to policymaking and was identified as a key driver of anticipatory chill. Evidence of the need for regulation (e.g. obesity or fetal alcohol syndrome prevalence) and usually also of likely policy effectiveness, including specifically in the South African context, was considered necessary which caused delays, especially given limited DoH research funding. As one DoH policymaker reflected:
“it’s delaying it [front-of-pack nutrition labelling policy process] to the extent that those who've advocated for this policy are saying ‘but you’re taking too long’ … but we have to put in place the scientific evidence and all the consumer acceptance … so that it can be defended if it does come up as a trade dispute” [DHN2].
Another health stakeholder explained, making reference to the Specific Trade Concerns raised six times by member states at the WTO TBT Committee in relation to Thailand’s proposed front-of-pack traffic-light nutrition label and 'children should take less' warning on snack foods proposed in 2006 :
“some of these international organisations they will say that there is no robust evidence on the issue of food labelling legislation that we are proposing and if you go ahead with that food labelling legislation then, like in Thailand, you will be subjected to WTO agreements and then you go through the WTO dispute resolution mechanism” [H1].
Notably, Thailand’s nutrition labelling regulation was not adopted until 2013 and with modifications that potentially compromised its effectiveness .
In relation to South Africa’s proposed tobacco plain packaging regulation, another health stakeholder commented:
“when they [industry] are threatening, you also want to make sure that you have enough evidence that could stand in a court of law. So, for all those areas that they started threatening we were able to go and search for more in-depth and more convincing evidence so that by the time they take us to court, we are ready because they are already indicating that they will take us to court” [H2].
While local evidence to support the need for and likely effectiveness of a regulation was considered grounds to safely diverge from international standards/guidelines, limited DoH funding for research meant health policymakers were often forced to rely on international standards/guidelines to determine the policy agenda in order to avoid trade challenges. As one DoH policymaker commented:
“for us as a developing country, we don’t have the resources to go about doing the science, so we often have to rely on donors, international donors that can assist us to develop this science whereas if it’s already in Codex or it’s already in WHO, when it comes from a health policy perspective, we can then say well, the policy narrative comes from the WHO, therefore it’s something that we need to look at.” [DHN3].
Without local research, the additional lack of guidance from Codex on front-of-pack nutrition labelling had also contribute to delayed progress on nutrition labelling.
Trade policymakers also commented on the importance of adhering to international standards but that deviation from these standards was acceptable if adequately robust evidence existed to support an alternative measure. One DTI policymaker reported:
“where there is an international standard in place you must use that as a guide, and where there are situations in your country where the international standard won’t address your objective for the regulation, you can deviate from the international standard, but that should be evidence-based.” [DTI1].
A number of stakeholders mentioned that the obligation to notify WTO of any proposed regulation provided foreign corporations with another channel, either directly or through their home governments, to lobby and prolong the policy process. However, this process was broadly considered necessary and important to ensure transparency and predictability in the policy environment despite being time and resource intensive. Health policymakers also considered that spending sufficient time consulting with international stakeholders was important to prevent THCCs taking legal action, as explained by one DoH policymaker:
“The legislation [nutrition labelling regulation] is still in the consultation phase… we didn’t want to rush in in terms of bringing in this legislation because we know the impact it’s going to have … we didn’t want to … be taken to court [by a company] saying that they were never consulted. We wanted to avoid it. Hence, even our international counterparts, we sent it out to them and said this is what South Africa’s going to come up with – do you have any comments?” [DHN1].
Trade officials reported that the South African government had delayed progress on their proposed tobacco plain packaging regulation by about two years until the outcome of both Australia’s ISDS and WTO cases were known, suggesting a degree of response chill had occurred in the area of tobacco control. Adopting a ‘wait and see’ approach was based on a reluctance to expend resources on developing and implementing a regulation they would later have to reverse if the same regulation in another country was judged in arbitration to be in violation of either international investment or WTO rules. As one trade official explained:
“if you were watching a case under a bilateral investment treaty, and you went ahead and implemented that same regulation and the case was found in favour of the investor, then you could just see them lining up in South Africa to proceed in the same way, so you’d have that [chilling] effect but at the WTO the fact that this case [involving Australia’s tobacco plain packaging regulation] was going on, we didn’t know what the outcome would be, so would you go ahead and implement it only to have to reverse it afterwards because the award went against the Australians? So yeah so it would have the same [chilling] effect.” [DTI3].
Use of investment protection rules or threat of investor-state dispute as a corporate tactic to generate nutrition or alchol regulatory chill
There were no definitive cases reported by key informants of THCCs threatening to initiate an investor-state dispute in an effort to generate a chilling effect on a specific nutrition or alcohol regulation in South Africa. Notably, one alcohol industry representative denied that they were even aware of the ISDS mechanism. Further, senior trade officials within the DTI reflected that from their perspective, avoiding a WTO dispute was of equal concern as avoiding an investor-state dispute, particularly due to the very high perceived costs involved with both.
Civil society representatives and academics perceived that resorting to the use of ‘hard’ legal tactics has to date been generally unnecessary for food and alcohol corporations. Instead, they are considered legitimate stakeholders in the policymaking process and can effectively apply ‘softer’ mechanism of power to expand access to and influence within policymaking spaces. One academic reflected for example:
“… they [THCCs] probably haven’t needed to do that [use investor-state disputes] because they’re using other approaches like embedding themselves with senior government officials” [RA2].
Another academic shared a similar view:
“they’re so close [government and the alcohol industry] that they don’t need to bring in these threats of international trade agreements because they’ve got enough power within the country to push policymakers.” [RA1].
While a number of CSO representatives and academics were concerned that the alcohol and food industries would, if necessary, use investment arbitration in the future, preserving an amicable relationship with government was considered a key motivation for industry to avoid, wherever possible, adopting such ‘hard’ tactics of influence. For example, one health official commented:
“I think they try not to offend government [with legal threats] and sometimes government doesn’t respond well to threats. Sometimes they have their mind more on convincing- to say look, if this goes ahead we’re going to have to scale down our factory, and people are going to lose jobs because our sale of sugar is going to decline” [TS1].
These views were supported by one alcohol industry representative in relation to the proposed alcohol health warning labelling which they argued was ambiguous and contrary to other domestic law:
“[in relation to the] health warning regulations we had to make a decision whether we would take the DoH to court. And it was an incredibly difficult decision because … they are regulators and you might win that battle but lose the war ultimately … the decision that we took at the time is:let’s continue finding ways to find some solutions with the DoH but use our courts as a last resort”. [AI1].
Use of trade rules/informal trade challenges to generate a chilling effect on nutrition and alcohol policy
Respondents described a number of cases in which South Africa’s trade obligations were used by either trading partners or THCCs to generate a chilling effect on specific nutrition or alcohol regulations. The number of examples described may well be underestimated since it was acknowledged by some health policymakers that pressure from trading partners for South Africa to abandon certain regulations potentially occurred between high-level political actors within closed informal political spaces.
Trading partners and THCCs had raised ‘trade concerns’ and/or sought bilateral consultation in relation to South Africa’s proposed front-of-pack nutrition labelling of processed foods. For example, one DoH policymaker reported having resisted attempts by other countries to pressure South Africa into aligning their food labelling regulations with other countries to minimize costs to their companies importing into South Africa and to avoid generating an unnecessary trade barrier.
While health policymakers denied that other countries’ proposed nutrition labelling being raised as a ‘specific trade concern’ within the WTO’s TBT Committee had delayed progress on South Africa’s own labelling regulation, policymakers were assessing these cases as part of their policy development process and proceeding cautiously.
In relation to the tax on sugar-sweetened beverages introduced in 2018, health policymakers reported that a sugar-producing European country had attempted to pressure South Africa into dropping the regulation claiming that it would affect global sugar production and was in violation of South Africa’s trade commitments. However, one health actor commented "in the end the trade side was also overridden by the health" [H3] and the tax was introduced, although at just 11%, not the originally proposed 20%.
It was also reported by nutrition policymakers that industry had argued the originally proposed Regulations Relating to Foodstuffs for Infants and Young Children banning marketing of breastmilk substitutes (eventually introduced in 2012), would create unnecessary barriers to trade; that certain elements went beyond what was recommended by Codex and the WHO’s International Code of Marketing of Breastmilk Substitutes (e.g. including pacifiers/dummies); or did not have sufficient supporting evidence (e.g. banning marketing of complimentary foods). However, these threats did not dissuade the DoH from adopting one of the most comprehensive set of regulations relating to the marketing of infant formula globally and in line with WHO guidelines.
In 2014 the DoH proposed amendments to their Regulations Relating to Health Messages on Container Labels of Alcoholic Beverages, increasing the size of the warnings to one-eighth of the container and rotating each of the seven warnings within every twelve-month period. After notifying the WTO of the amendment, the regulation was challenged informally at the TBT Committee by the EU and Canada over concerns it would create barriers to trade for small and medium producers . Subsequently, the local alcohol industry as well as trading partners (including the EU and US) and foreign transnational alcohol corporations have bilaterally engaged the DoH raising concerns about ambiguity of the regulation; problem with the wording of the health messages, accepting for example ‘don’t drink and drive’ but not ‘alcohol may be a danger to your health’; impracticality/technical feasibility of the proposed size of the labels; the cost to manufacturers of such frequent rotation of messages; and lack of sufficient evidence of the regulation’s effectiveness in reducing alcohol-related harm. It was mentioned by a few health policymakers that transnational alcohol companies had complained that, for a number of the reasons outlined, the labelling requirements would create unnecessary barriers to trade.
Ultimately however, despite a reported earlier consensus between the DoH and DTI in favour of amending the alcohol health warning labelling regulation, in October 2020, the DoH repealed the proposed amendments due to the challenges of implementing the regulation raised by local industry (e.g., the difficulty in calculating one-eight of the surface area on an alcohol container) and potentially also international stakeholders' concern that the regulation created unnecessary barriers to trade. The DoH planned to review the regulation in light of informal discussions with the WHO and their discussion paper on policy options for alcohol labelling. This process indicates the requirement for very specific international guidance on the design, size and content of health warning labels based on scientific evidence.
When asked more generally about the use of trade rules as a strategy to influence South Africa’s regulatory environment, one alcohol industry representative reflected:
“...it’s a long, drawn-out process, even as a business. We would never go to a government and say that this government is in contravention of the WTO, without being a hundred percent certain.” [AI2].
Another foreign transnational alcohol corporation representative commented that while “using international trade rules to limit policy” [IA2] had been considered by the alcohol industry, it was in fact very difficult to achieve.
There was however indication that the alcohol industry attempted to enlist the South African government to act on their behalf at the WTO in an effort to chill policy progress in South Africa’s trading partner countries. This was explained by a trade official:
“Industries will come and they’ll make a case and they’ll go through NEDLAC and they’ll write to the ministers, they’ll write to the president, they’ll speak to all of the officials and they try to make their case [for filing a WTO complaint against a trading partner] and then you’d have to make an assessment of whether or not the case is legitimate, whether or not you have a chance of winning the case.” [DTI3].
An alcohol industry representative commented however, that their industry did not contribute enough to GDP to be in a position to convince the SA government to act on their behalf within WTO fora. Instead the alcohol industry was able to utilise its global business network through, for example the World Wine Trade Group that includes wine producers and distributers in the US, Canada, Chile, Australia, New Zealand, Uruguay, Argentina and Georgia. For example, in relation to Scotland’s proposed minimum unit pricing regulation an alcohol industry representative commented:
“we asked our counterparts in those countries to please speak to their governments. And again, you speak to the ones who are most likely to help. And you know the US government was willing to listen to its industry and raise concerns”.
Together these findings again indicate that South Africa’s trade obligations are currently a much more relevant tool of influence to promote nutrition and alcohol policy non-decisions than any problem of response chill resulting from threats of investment arbitration.
Given that no previous WTO or investor-state disputes have been in relation to a specific nutrition or alcohol harm reduction regulation in South Africa or elsewhere, no cases of precedential chill in these policy areas were identified. However again, trade officials reported South African government’s confidence to proceed with their tobacco plain packaging proposal was significantly boosted by the positive outcomes in Australia’s investor-state dispute despite the lack of precedent in international investment case law. This suggests that had the opposite outcome been reached in this case, precedential chill may have occurred for tobacco plain packaging in South Africa.
The outcome of the WTO dispute against Australia was however reported by both trade and health actors to have equally influenced South Africa’s decision to proceed with implementing their own regulation. One trade official explained this was due to an understanding that once precedents are established in WTO case law, they usually hold in future cases. Therefore it may have been considered too risky for South Africa to proceed with plain packaging if Australia has lost their case:
“if it had gone against Australia perhaps there would have been a re-evaluation [of the policy in South Africa] and to then take into account the risks of another challenge to us and you know once the precedent is set, then it’s very difficult to win the case after that, so the risk of being challenged successfully would have gone up and so … we would have to make an assessment whether not it was worth taking that risk.” [DTI3].
Concessions on public health regulations during trade negotiations
In addition to concerns of post-agreement trade rule violations, trade policymakers described the potential for health policy non-decisions to be promoted during trade agreement negotiations.
There was concern amongst high-level trade officials that international trade rules, particularly those outside the WTO systems, so-called ‘WTO-plus’ or ‘WTO-extra’ commitments, had the potential to restrict domestic public policy space for addressing development challenges. As such South Africa generally tried to negotiate agreements within the WTO framework. As one trade official explained:
“we still sit with huge unemployment and rural under-development... So you want to address both issues, you don’t want to be tied up in agreements that prevent you from doing certain actions that are in the public’s interest.” [DTI3].
However, it was fairly widely perceived that, as a developing country, South Africa was often required to make concessions during trade negotiations with larger more powerful economies, including further opening their markets for processed foods products and alcohol. As one alcohol industry representative stated:
“they [the DTI] don’t start looking at alcohol policy and say well you know, should we be allowing alcohol to come in duty free? It’s the powers of negotiators at a trade block level that will determine the outcome” [AI1].
In 2015 the US was reported to have threatened to cut access of approximately 6000 South African products, including wine, to the US market under the African Growth and Opportunity Act (AGOA) Agreement if South Africa did not lift an anti-dumping duty and other trade barriers to imported US chicken products. Ultimately, South Africa agreed to reduce barriers to US chicken imports which also required relaxing poultry food and safety standards that some suggested had potential direct public health impacts. Others mentioned the indirect public health impacts relating to the devastating economic impact on local poultry farmers who could not compete with the high volume of cheap imported US chicken cuts. There was however a general perception that, ultimately, the economic benefits outweighed the health impacts, as one health stakeholder explained:
“[we] looked at the cost and benefits ultimately and we then realised that, in the long run, it will be in our best interest to relax some of the health and safety regulations for a bigger agenda or for a bigger good.” [H1].
Conditions that influence regulatory chill or trade-related policy non-decisions
Both trade and health policymakers discussed various conditions that may directly or indirectly increase the likelihood of, or protect against trade or investment dispute-related regulatory chill.
Perceptions of trade and investment rules and dispute settlement systems
The first set of conditions relates to perceptions of the international trade and investment rules and dispute settlement systems themselves, however these were primarily discussed in general terms, not in relation to specific cases of nutrition or alcohol regulatory chill. While some trade policymakers were confident that existing safeguards within the Sanitary and Phytosanitary Agreement (SPS) and TBT Agreement provided sufficient protection for nutrition and alcohol harm reduction regulation, another high-level trade official was concerned that WTO agreements “were not entirely balanced” and tended to prioritize trade over health objectives. However, this comment was made in relation to TRIPS and access to medicines, not nutrition or alcohol regulation. The same trade official also reflected that the WTO dispute settlement system was structured in a way that prioritized trade over health:
“it’s quite tenuous in a sense that these serious health considerations would be subject to a decision by panellists that have in their mind the trade implications overwhelmingly... you get a chance of a bias in the WTO towards trade … they’re highly competent people but this [health] is not their field.” [DTI3].
However, another trade policymaker felt that over time, WTO norms had shifted such that expert input from the WHO was increasingly sought and considered during health-relevant arbitration.
Generally though, the WTO as opposed to the investor-state dispute system was still perceived as a preferred option, partly since it had been agreed on by all WTO member states and provides a buffer against weak claims by industry:
“the WTO mechanism is seen to be a better option, it’s also not … private companies that challenge governments, its [other] states. They [private corporations] have to convince their government to take up the challenge in order to launch it … so there’s an advantage” [DTI3].
Trade policymakers recognized a number of characteristics of the ISDS system which may increase the risk of regulatory chill which, not surprisingly, aligned with the findings of the 2010 Review of South Africa’s BITs. These included a lack of perceived legitimacy of the ISDS process since cases are brought by private corporations against a government and the outcome decided by three private arbitrators; a lack of precedent and consistency in arbitral decisions; conflict of interest of arbitrators and lawyers; and cost of arbitration itself as well as potential investor compensation.
While in theory these concerns meant the threat of an investor-state dispute may generate greater uncertainty and concern than the threat of a WTO dispute, in practice, the perceived high costs associated with either could potentially have a chilling effect on health policy. One trade official reported for example:
“ … the costs become a really important consideration. And the longer they go on the more costly that becomes and many developing countries simply don’t have the finances to pursue these cases … even when they would want to … and may accede to the demands of the claimants more easily than a developed country that … is prepared to fight the case with the best available lawyers over a period of time” [DTI3].
The cost of trade sanctions imposed by a trading partner in response to an identified or perceived violation of South Africa’s trade obligations was also noted to be a major consideration.
Stakeholders within the DTI also identified a number of country-related characteristics, largely determined by a state’s level of economic development, that may increase the likelihood of regulatory chill in South Africa and other LMIC countries. Limited institutional capacity for analysing trade and investment treaty texts (as had previously occurred in South Africa) and their ongoing status as primarily a ‘rule-taker’ in treaty negotiations with larger economies were considered by trade policymakers to potentially make it difficult to protect policy space to regulate in the public interest. Lack of technical capacity and human resources was also reported to make it challenging for South Africa to engage in trade negotiations or, monitor and assess new regulations and procedures within the multiple WTO fora. This was thought to potentially make South Africa more vulnerable to non-compliance with newer WTO regulations, exposing them to potential trade-related complaints or disputes. Limited trade literacy within the DoH (outside access to medicines issues) and minimal collaboration and coordination between trade and health policymakers on trade policy development or negotiations was also identified as having potential to reduce nutrition and alcohol policy space.
Industry-related factors include the social acceptability of the industry being regulated with indication that a high level of industry unacceptability can be protective against regulatory chill. For example, in contrast to the food and alcohol industry, trade actors reflected on the social unacceptability of the tobacco industry and its products and how this motivated the government to proceed with plain packaging despite the ongoing recognized risk of a trade or investment dispute.
High levels of social unacceptability of the relevant industry also appeared to diminish the applicability of rationale used by trade actors to explain policy non-decisions. For example, while both trade and health policymakers identified insufficient evidence as a key driver of nutrition policy non-decisions (partly since this exposed South Africa to a trade or investment challenge), lack of evidence of policy effectiveness was not considered a reason to shelve the proposed tobacco plain packaging regulation. As one trade policymaker explained:
“you can only determine what will be the effect after it has been introduced. So it’s very difficult to anticipate beforehand what the results will be. But from our point of view we don’t really see a negative effect [of adopting plain packaging].” [DTI1].
A product’s perceived risk to health could also influence the willingness of policymakers to pursue a regulation despite the trade or investment-related legal risks. While strong evidence of a causal relationship between a product and one or more deleterious health outcomes was essential, the health risk of a product appeared also to be assessed on the basis of the complexity of such a causal relationship. For example, one trade policymaker explained the evidence of the risk to health of sugary foods was not considered sufficient to warrant restricting trade.
This was reflected on by one health policy actor as contrasting with South Africa’s willingness to introduce the South African Medicines Act in 1997 despite legal threats that these policies were in violation of TRIPS. This was considered due to how clear and direct the implications of TRIPS was for access to affordable medicines during the AIDS epidemic and the associated scale of AIDS mortality at that time in South Africa. These issue characteristics, along with massive civil society pressure, were cited by policymakers as the key reason government adopted amendments to the Medicines and Related Substance Control Act despite threats of US trade sanctions, a WTO dispute and a domestic legal case brought by multinational pharmaceutical companies including for violations of TRIPs.
The capacity for cross-border policy learning also appeared to build policymaker confidence in developing regulations that would withstand any trade (or possibly investment) challenge. Health policymakers reported reviewing measures other countries have taken and successfully defended in WTO fora, including the evidence used and policy design. As, for example, one DoH policymaker commented in relation to front-of-pack nutrition labelling:
“we’re actually looking in terms of what other countries have done and what the challenges might be, we’re involving the legal minds to help come up with something like this, so that we wouldn’t have any trade disputes or any challenges with the WTO” [DHN1].
Lastly, political will, policy champions and the strength of civil society action were mentioned as important to protect against regulatory chill.