Reported by Ewa Grabiak, Legal Coordinator, ECTA, PL

Transcription

1 4 October 2012 REGULATING LIFESTYLE RISKS IN EUROPE The case of Alcohol, Tobacco, Unhealthy diets and Gambling Workshop on Regulation, HEC Paris, France Reported by Ewa Grabiak, Legal Coordinator, ECTA, PL The major merit of the 2 nd HEC workshop on Regulation was to bring together academics from all over the Europe, as well as the industry representatives, in order to have a constructive and fruitful dialogue on the latest trends in lifestyle regulation. The panels were diversified in order to provide the most complete analysis on the question. The 1 st panel was dedicated to the non-communicable diseases (NCDs) and possible approaches to lifestyle regulation. It is important to remind the external context, which is the global consensus reached at the General Assembly during the UN Meeting on how to tackle NCDs (diabetes, heart diseases, cancers etc.) What are the challenges and opportunities in regulating lifestyles? The first speaker Tsung-Ling LEE made a presentation regarding Dissecting NCDs Regulatory Mixes: A Prescription for a Cure or a Malignant Growth for Population Health? Nowadays it is possible to notice certain trend to create healthy societies. In this context the state plays the role of the health manager, who tends to persuade to follow healthy lifestyle in many different ways, namely through legislation, taxation, education, media campaigns and regulations. That is to say, state employs law to persuade the population of the benefits of a healthy life. We may distinguish two types of persuasion, positive, which focuses on the options available to individuals and negative, which restricts or even prohibits the consumers choices, like for instance plain packaging. The question is how or to what extent we would like the state to intervene in our choices, regarding the expansive importance of the health matters. Further, the next speaker Adam BURGESS (University of Kent) made a presentation entitled Making the case for lifestyle risk. The main concern regarding the lifestyle regulation is to know when enough is enough and to make a clear distinction between deviant and nondeviant risk. The lifestyle regulation should be based on the degree of the harm that can be caused to the consumer. He mentioned that intrumentalising the regulatory approach can be dangerous. More balanced approach is definitely needed; the legislator should not follow those who shout loudest. ECTA Secretariat, Rue des Colonies 18/24, 9th Floor, BE- Brussels, Belgium Tel 32/ Fax 32/ ecta@ecta.org Internet A company limited by guarantee. Reg. in England and Wales No Registered address: Suite 1.3, Vernon House, Sicilian Avenue, London, WC1A 2QH, England VAT No. BE

2 The discussion with audience followed the presentations. Axel KLEIN from Kent University mentioned the fact that the legislations focus on the health and the harm, but not on the unexpected consequences, namely crime increase or proliferation of violence. These consequences are not object of the regulation. Further Andy STOWARD (Esprit des Bois) added that the consumers need the accurate and transparent information in order to make conscious choices. However, there must be distinction made between evidence based policy making and the policy based on evidence making. He added that the war between the defenders of public health and industry should end in order to protect consumer s wellbeing. The 2 nd panel focused on four main legal and policy interventions aimed at regulating lifestyle risks. These interventions may broadly be grouped under four main categories: Information schemes (e.g. labelling), Measures affecting product availability (e.g. reformulation; marketing restrictions), Fiscal measures (e.g.tobacco or fat taxes), Civil liability schemes (tort law). Most of these measures do not target individual behaviour as such, but the environment within which individuals make decisions. The first part of the panel was dedicated to the role and limits of the consumers information. Enrico BONADIO (City University London) focused on the impact of lifestyle regulation on Intellectual Property Rights. As he mentioned, the regulatory measure can be divided into four categories: Measures regarding the presentation of products; for instance packaging. Its main aim is to induce consumers to make their choices. The plain packaging would oblige the brand owners to remove trade marks and logos from the packaging, which are considered as inciting to smoke. Measures regarding the advertising aspect, namely consisting in removing commercials of tobacco, alcohols from TV etc., or ban on aggressive marketing strategies. Measures restricting manufacturing namely ban on use of certain ingredients. Measures restricting supplying. Further it was interesting to underline that, according to Enrico Bonadio s approach, the Intellectual Property Rights should be rather perceived as negative rights, in the sense that they allow to prevent others from exploiting the asset provided by the Intellectual Property Rights. It is worth to remind that this perception of Intellectual Property Rights is different from the one presented by Max Oker-Blom and Ewa Grabiak in the article Trade Marks- Governmental Regulatory Instruments? 1 published in the Magazine Décideurs. It is obvious that the right or very freedom to use a trade mark in the first place is a necessary precondition for being able to exclude others. Should there not be such a positive right there 1 The English version of the article may be found here: _tm_as_governmental_regulatory_instruments_18_september.pdf HEC Paris 2

3 would be no meaning in having a negative right. In other words, the existence of negative right is inextricably related to the existence of the positive right. Enrico Bonadio submitted three suggestions of efficient use of IPRs in this context. First, the patents submitted for food products and drinks should be required to contain macronutrients, namely vitamins or proteins. Further, a fast track procedure should be set up for patent applications covering healthy food and beverages. Finally, applications for patents covering healthy food should be exempted from applications fees. The second part of the panel focused on the role of the tort law in the context of the lifestyle regulation. Marie-Eve ARBOUR from Laval University first explained the merits of the tort law, namely compensation, the punitive aspect and the efficient risks spreading. However, the tort law is not preventive, as the damage is caused. On the other hand the litigation has the effect to reduce social issues to the private sphere. The question is therefore if the tort law should have the social function? Further Marie-Eve Arbour pointed out the differences between the litigations in the tobacco and fast food sector. Usually the same lawyers do these cases. The question of risk is usually covered by the argument of common knowledge. Therefore, very often there is no action. On the other hand, eating is different from smoking and fast food does not cause addiction. In the context of tobacco litigations, the actions causes are much with product liability. The tort law is not supposed to play the same role as the Regulation. It is much more efficient to focus on preventing and to remain on the pre-market side. In this case, if the damage remains, then intensive efforts should be done on causation, namely psychological and marketing aspects. If this fails, then the tort law should play its role and compensate the damages caused. The 3 rd panel was focused on the legality of EU lifestyle regulatory action. This emerging policy raises significant legal issues related to the EU legal competence to act, as well as compliance with the principles of subsidiarity and proportionality. The aim of this session was to discuss the legal limits of EU lifestyle regulatory action by focusing on some of the most controversial policy options currently under consideration at the EU and Member State level. Alberto ALEMANNO (HEC Paris) focused on the new trend in Europe - Fat taxes. To discourage unhealthy eating and limit the population s intake of fatty foods, an increasing number of countries across the European Union is considering levying taxes on unhealthy food. It is supposed to decrease the consumption. A fat tax may be defined as a tax or surcharge placed upon fattening foods, beverages or individuals with the aim to decrease consumption of foods that are linked to obesity. On 1 October 2011, Denmark introduced a tax on foods by targeting those products that are high in saturated fat. On 1 September 2011, Hungary introduced a tax on products considered excessively salty, sweet or with high caffeine levels. France is following this trend by imposing taxes on the soft drinks this year. Inspired by the French example, the Irish government is also considering introducing a tax on carbonated soft drinks to help combat obesity. HEC Paris 3

4 The first problem is the evidence. Such taxes can have the perverse effect of increasing consumption of fatty or salty foods. While studies show that eating behaviour may be more responsive to price increases than to nutritional education, there is also evidence that obese individuals are less responsive to changes in the price of food than normal-weight individuals. Some studies on the effect of cigarette and alcohol sin taxes suggest heavy users are less influenced by price changes than others, so that a fat tax may do little to improve health. This suggests that fat taxes are more likely to prevent obesity than to tackle it. Further, these taxes may have more effect on poor people, as the poor spend a greater proportion of their income on food, and in particular on unhealthy cheaper food, there is a risk that a junk food tax may be regressive. The Danish fat tax, the Hungarian crisps tax, and similar measures which might be introduced in individual EU Member States in the future appear to be indirect internal taxes that are not harmonised at the EU level. In principle, EU law allows Member States to introduce and maintain non-harmonised internal taxes and freely establish their modalities. However, such taxes must comply with the Treaty on the Functioning of the European Union (hereinafter, TFEU), in particular with Article 110 thereof, which prohibits internal discriminatory taxation, direct or indirect, on products from other Member States, in excess of that imposed on similar domestic products. The same provision also prevents Member States from imposing on products from other Member States any internal taxation of such a nature so as to afford indirect protection to other products. The Danish and Hungarian governments have notified the European Commission of these taxes under the Directive 98/34/EC procedure. In both cases, it was considered that the tax measure had no significant impact on international trade. However, such measures may affect the cross border trade, as it was already noted in Denmark. Alberto Alemanno concluded that if several Member States adopt such taxes, the EU may consider stepping in so as to adopt an EU wide fat tax. In this way fiscal measures could become a part of the regulatory framework. The second day of the workshop was dedicated to the self-regulation experiment and namely to the Platform on diet, physical activity and the EU Alcohol and Health Forum. In the EU self-regulation has been used as a privileged instrument in reducing the marketing of unhealthy food and alcoholic beverages. By contrast, the marketing of cigarettes and other tobacco products has been banned in law. The main question is to determine to which extent the self-regulation has proven to be an effective mechanism to reduce marketing pressure at EU and national level and the impact it has had on EU and national regulatory initiatives. Isabel DE LA MATA from DG Sanco (European Commission) opened the discussion and reminded that the Lisbon Treaty do not offer many opportunities to the EU legislator to work on health issues. Therefore, tools such as Health Forum or Platform have a huge importance. They also have a certain impact on national and local policies. For example in France, the French Ministry adopted the Nutrition Improvement Commitments Chart. The HEC Paris 4

5 industries are invited to improve their products and further an independent body controls the progress. On the other hand, it is important to know to what extent the industry operators should be involved in social marketing or education campaigns. This question raised quit emotional reactions amongst the discussants as well as in the audience. The question was also to know if all industries should be involved. The representatives of anti-tobacco associations stated that the tobacco industries should be excluded from such kind of initiatives and refused to dialogue with them. The Chair of the workshop, Alberto Alemanno concluded that the main goal of the workshop, held in the academics environment, is to bring representatives from all background in order to find efficient and open minded solutions. In order to preserve the intellectual independence, the dialogue should bring all parties concerned together, as dangerous products exist and need to be regulated. This approach was strongly approved by the audience. HEC Paris 5