With Anne Marie Thow, I have co-authored a short policy paper on the implications of international investment law for public health nutrition. The primary point of the paper is that governments have not undertaken sufficient work to think through the implications of international investment law for public health nutrition. On the one hand, governments seek to promote investment in the food chain to enhance food security. On the other hand, governments are increasingly taking downstream steps to regulate the products of that investment in the name of public health. This creates a risk of liability under international investment agreements, particularly where governments induce foreign investment. The abstract is as follows:
Philip Morris has recently brought claims against Australia (2011) and Uruguay (2010) under international investment agreements (IIAs). The claims allege that Philip Morris is entitled to compensation following the introduction of innovative tobacco packaging regulations to reduce smoking and prevent noncommunicable diseases (NCDs). Since tobacco control measures are often viewed as a model for public health nutrition measures, the claims raise the question of how investment law governs the latter. This paper begins to answer this question and to explain how governments can proactively protect policy space for public health nutrition in an era of expanding IIAs. The authors first consider the main interventions proposed to reduce diet-related NCDs and their intersection with investment in the food supply chain. They then review the nature of investment regimes and relevant case law and examine ways to maximize policy space for public health nutrition intervention within this legal context. As foreign investment increases across the food-chain and more global recommendations discouraging the consumption of unhealthful products are issued, investment law will increase in importance as part of the legal architecture governing the food supply. The implications of investment law for public health nutrition measures depend on various factors: the measures themselves, the terms of the applicable agreements, the conditions surrounding the foreign investment and the policies governing agricultural support. This analysis suggests that governments should adopt proactive measures – e.g. the clarification of terms and reliance on exceptions – to manage investment and protect their regulatory autonomy with respect to public health nutrition.