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Policy Research Programme - Navigation of Trade Challenge at the World Trade Organisation for Public Health Policies

Published

10 May 2022

Version

1.0 - May 2022

Contents

Timetable and Budget

Description

Deadline/Limit

Deadline for Stage 1 Applications

14 June 2022, 1 PM

Notification of outcome of Stage 1 Application

August 2022 

Deadline for Stage 2 application

28 September 2022, 1 PM

Notification of outcome of Stage 2 Application

December 2022 - January 2023

Project Start

March 2023

Budget

Not specified, see budget section

Introduction

The National Institute for Health and Care Research (NIHR) Policy Research Programme (PRP) invites applications for a single research project to look at the key factors which determine whether public health policies successfully navigate challenges at the World Trade Organisation’s Technical Barriers to Trade (WTO TBT) committee.

The UK has experienced little challenge to its public health policies at the WTO TBT committee to date. Previously, UK policies had to be compliant with EU trade rules and the EU represented the UK at the committee. EU exit means that the UK no longer has to comply with EU trade rules and can explore new and innovative policy and regulations to protect public health; however, these may be subject to challenge at the WTO TBT committee if other member states feel the public health policies represent an unnecessary barrier to trade [1]. For the first time, the UK will have to represent itself and justify the policies it wants to implement. This project is an opportunity to contribute to the evidence base on a high profile and important area of significant potential risk and opportunity to Government policymakers.

Background

The 2020 Tackling Obesity Strategy [2], sets out how obesity is one of the biggest long-term health problems England faces, with the 2020-21 National Childhood Measurement Programme figures [3] showing that 2 in 5 children leave primary school living with overweight or obesity. NHS Digital data [4] shows that nearly two thirds of adults are above a healthy weight, and around half of these live with obesity. Similarly to the impacts of alcohol [5] and smoking [6], the data shows that people living in areas of deprivation are more likely to be living with overweight or obesity compared to those living in the least deprived areas [7]. Obesity is a risk factor for a range of chronic diseases including type 2 diabetes, cardiovascular disease, and some cancers. The issue of healthy weight has become even more pressing recently as evidence shows that excess weight increases the risk of poor outcomes from COVID-19, further exacerbating health and socio-economic disparities [8].

Alongside voluntary reformulation programmes the UK Government has been pursuing a number of regulatory policies to help meet the Government’s goal of halving childhood obesity by 2030. This includes the Soft Drinks Industry Levy (SDIL) [9] implemented in 2019, as well as legislation on menu calorie labelling in the out of home sector [10] which became law in April 2022. Regulations to restrict the sale of less healthy food and drink by volume and location promotion [11] are due to come into force in October 2022 and restrictions on advertising less healthy products [12] on TV before 9pm and online are expected to be introduced in January 2023, pending Parliamentary procedure. Government has also held an information gathering consultation on how we could build on the existing voluntary Front of Pack Nutritional Labelling and committed to consult on the marketing and labelling of infant foods, and calorie labelling on alcohol.

Member States of the WTO coordinate their trade policies to reduce barriers to trade wherever possible. The principles include avoiding protectionist policies that unfairly favour domestic goods over foreign goods or favour goods from one country over another. It is possible that in the future, regulatory policies may receive challenge at the WTO.

The WTO has a range of sub-agreements to facilitate this aim in different areas. The Technical Barriers to Trade Agreement is designed to reduce unnecessary obstacles to trade created by a country’s technical regulations, including regulations to protect public health. The WTO TBT rules state that countries are allowed to create technical regulations to protect public health, provided that these regulations are non-discriminatory towards other member states and do not create unnecessary obstacles to trade.

Governments are required to notify the WTO TBT Committee of regulatory policies that may impact trade with other countries before the policy is implemented. This involves submitting the policy for scrutiny, with 60 days for comments from other member states. Challenges (known as Specific Trade Concerns or STC) can only be formally made by other member states although these can be made on behalf of companies or industry groups. These are usually resolved informally through bilateral conversations and modifications to the policy before the policy is fully introduced.

However, if not resolved and the regulation is enacted, concerned countries can choose to elevate their STC to formal legal dispute, effectively beginning a civil legal case against the enacting country. Analysis by the WTO notes the formal dispute mechanism is inundated with an average of 30 requests to convene a dispute panel each month, with two thirds of reports going to appeal [13]. Formal legal challenges can cost hundreds of thousands if not millions of dollars, with no reimbursement for legal fees even if the country successfully defends their policy. Disputes can also have significant political impacts, worsening diplomatic relations and affecting other areas of trade and cooperation.

Since 1995, there have been an increasing number [14] of challenges [15] against domestic food, beverage and tobacco regulations made to [16] the WTO TBT committee. While it is common for countries to raise concerns about another nation’s policy through the committee, the literature cites examples of ‘regulatory chill’, where governments have delayed, altered or abandoned regulatory public health policies relating to food, beverages or tobacco to avoid the administrative, legal, political and economic costs associated with a potential dispute.

The challenges noted in the literature include ‘unnecessary barrier to trade’ with challengers saying that the goal of the regulation could be achieved in ways that would pose fewer restrictions on trade; clarity and strength of the evidence base underpinning the policy; questioning the rationale or legitimacy of a regulation; citing disproportionality of costs according to risk; and insufficient information. The strength of evidence required by a regulatory policy, or by a challenger, is not clear.

Research priorities

There is a need to understand in more depth what evidence the WTO TBT committee requires in order to make an assessment; and how other countries have avoided or successfully defended the challenges made against their policies. Improved understanding of this will support the successful navigation of the UK’s policies through WTO TBT, reducing risk of challenges that may result in necessary regulations getting diluted or abandoned.

Building on analysis on best practices in labelling design [17], evidence on policies at TBT that specifically pertain to labelling of food and beverages (both alcoholic and non-alcoholic) is sought. However, a breadth of public health policies beyond labelling (i.e. reformulation, marketing including promotional packaging) are in scope and applicants should set out the most appropriate approach to take to understand how different future policies might successfully navigate the WTO TBT and substantiate general learning on the strength of evidence required by the committee.

Barlow & Stuckler (2021) developed the WTO health dataset consisting of all challenges to national health regulations raised by the WTO TBT committee 1995-2016 including those aimed at non-communicable disease prevention through food, beverage and tobacco regulation [18].

We anticipate a mixed methods review using both quantitative and qualitative analysis to assess the types of public health policies (including but not limited to food, alcohol and tobacco) that have been challenged at WTO TBT committee, the argument used by the country raising the challenge and the response of member states.

Applicants should consider the following primary research questions but may suggest additional questions to meet the aims of the project:

  1. What are the types of challenge most commonly levied at public health policies at the WTO TBT committee?

  2. What evidence was provided to the committee in response to specific trade concerns raised at the proposed policy?

  3. How was the evidence assessed by the committee? How did they assess the strength and quality of that evidence?

  4. How did the committee assess the ‘legitimacy’ of the challenge?

  5. Is the challenge made consistently to any country proposing a similar policy or do challengers vary depending on the country proposing the policy (i.e. high, middle or lower income)?

  6. How frequently is the challenge made on behalf of companies?

  7. To what extent were policies altered to satisfy the challenger, or the Committee?

  8. What common tactics and framings can be identified in challenges?

  9. On what basis did regulatory policies successfully defend against challenges through the TBT committee? Did Member States go on to implement in full?

We anticipate that the research will include two phases, the first of which assesses the feasibility of the qualitative work. The scoping phase should include an assessment of:

  • whether it is possible to obtain additional evidence submitted by a country in response to a WTO TBT challenge;

  • information on the outcome and impact on the challenged policies; the WTO TBT committee process for assessing information; and

  • the ability of the successful research team to obtain approvals to conduct interviews with key stakeholders.

The outcomes of this scoping phase will be discussed with DHSC to inform a decision on how, or whether, to move to the next phase of the research.

Applicants should set out proposed options for phase 2 of the study to synthesise and collate the case studies on challenged policies and conduct detailed analysis to provide a report on the key factors determining success., including risks and mitigations for possible outcomes from the scoping phase. Each option should be costed.

Research should extend beyond the UK and high-income countries to include lower- and middle-income countries where possible. There is particular interest in South and Central America where more contentious food labelling legislation has been introduced (e.g. Chile, Mexico).

Areas out of scope for this programme of work

This research should focus on the WTO TBT. The WTO TBT is considered to cover technical barriers to trade for goods under the General Agreement on Tariffs and Trade (GATT) agreement. If analysis includes TBT concerns that were raised to formal WTO disputes where a dispute case may cite multiple WTO agreements, analysis should focus on elements of those cases that relate to TBT.

Other WTO agreements such as Sanitary and Phytosanitary Agreement (SPS), General Agreement on Trade in Services (GATS), and Trade-Related Aspects of Intellectual Property Rights (TRIPS) should not be included in this research.

Expertise required

We would expect applicants to have backgrounds in public health, unhealthy commodities, health and trade, governance, international trade law, and/or similar areas. Applications should make any relevant expertise clear.

Outputs

Outputs should include:

  • interim reports and updates as agreed at project scoping;

  • draft publishable report and final publishable report, with executive and lay summary in a form suitable for policy colleagues in a 1:3:25 format; and

  • a presentation of findings to DHSC colleagues and key stakeholders

The successful applicant will produce a final report, fully accessible to policymakers and members of the public and circulate to DHSC. When the study is complete, the successful applicants will place a final report summary on the NIHR Policy Research Programme website, where outputs resulting from public expenditure are available for public scrutiny. It is important the final report summaries are easily accessible to lay readers.

Applicants should consider the full range of potential audiences and describe how to disseminate research findings most effectively so lessons from this research affect policy and practice.

Applicants are asked to consider the timing and nature of deliverables in their proposals. Policymakers will need research evidence to meet key policy decisions and timescales, so resources need to be flexible to meet these needs. A meeting to discuss policy needs with DHSC officials will be convened as a matter of priority following contracting.

Budget and duration

We have not specified a budget for this project, we invite bidders to offer a cost to address the above specification to a high quality. Applicants are requested to propose their indicative budget for scoping and phase 2 research in their Stage 1 application. Additional detail will be requested at Stage 2 if shortlisted. Applicants are advised that value for money is one of the key criteria that peer reviewers and commissioning committee members will assess applications against.

Costings can include up to 100% full economic costing (FEC) but should exclude output VAT.

We expect the research to be completed within 24-36 months of contracting.

Management arrangements

A research advisory group including, but not limited to, representatives of DHSC, other stakeholders and the successful applicants for the research should be established. The advisory group will provide guidance, meeting regularly over the lifetime of the research. The successful applicants should be prepared to review research objectives with the advisory group, and to share emerging findings on an ongoing basis. They will be expected to:

  • Provide regular feedback on progress

  • Produce timely reports to the advisory group

  • Produce a final report for sign off

Research contractors will be expected to work with nominated officials in DHSC, its partners and the NIHR Policy Research Programme. Key documents including, for example, research protocols, research instruments, reports and publications must be provided to DHSC in draft form allowing sufficient time for review.

References

  1. van Schalkwyk, Barlow, Siles-Brügge, Jarman, Hervey and McKee (2021). An analysis of the governance of UK trade policy and what it means for health and social justice. [Accessed April 2022]

  2. Department of Health and Social Care (2020). Tackling obesity: government strategy - GOV.UK. [Accessed April 2022]

  3. NHS Digital (2021). National Child Measurement Programme, England 2020/21 School Year - NHS Digital. [Accessed April 2022]

  4. NHS Digital (2020). Part 3: Adult overweight and obesity - NHS Digital. [Accessed April 2022]

  5. Public Health England (2018). The public health burden of alcohol: evidence review - GOV.UK. [Accessed April 2022]

  6. Public Health England (2021). Local tobacco control profiles for England: short statistical commentary, July 2021 - GOV.UK. [Accessed April 2022]

  7. Public Health England (2019). NCMP and Child Obesity Profile: slope index of inequality data update, May 2019 - GOV.UK. [Accessed April 2022]

  8. Public Health England (2020). Excess Weight and COVID-19: Insights from new evidence. [Accessed April 2022]

  9. HM Revenue & Customs (unknown). Business tax: Soft Drinks Industry Levy - detailed information - GOV.UK. [Accessed April 2022]

  10. Department of Health and Social Care (2021). Calorie labelling in the out of home sector: implementation guidance - GOV.UK. [Accessed April 2022]

  11. Department of Health and Social Care (2021). Restricting promotions of products high in fat, sugar and salt by location and by price: government response to public consultation - GOV.UK. [Accessed April 2022]

  12. Department for Digital, Culture, Media and Sport, and Department of Health and Social Care (2021). Introducing a total online advertising restriction for products high in fat, sugar and salt (HFSS) - GOV.UK. [Accessed April 2022]

  13. Holzer (2018). Addressing tensions and avoiding disputes: Specific trade concerns in the TBT committee. [Accessed April 2022]

  14. Barlow, Labonte, McKee and Stuckler (2018). Trade challenges at the World Trade Organization to national noncommunicable disease prevention policies: A thematic document analysis of trade and health policy space. [Accessed April 2022]

  15. Garton, Thow and Swinburn (2021). International Trade and Investment Agreements as Barriers to Food Environment Regulation for Public Health Nutrition: A Realist Review. [Accessed April 2022]

  16. Thow, Jones, Hawkes, Ali and Labonté (2018). Nutrition labelling is a trade policy issue: lessons from an analysis of specific trade concerns at the World Trade Organization. [Accessed April 2022]

  17. Jones, Neal, Reeve, Ni Mhurchu and Thow (2019). Front-of-pack nutrition labelling to promote healthier diets: current practice and opportunities to strengthen regulation worldwide | BMJ Global Health. [Accessed April 2022]

  18. Barlow, Stuckler (2021). Globalization and health policy space: Introducing the WTOhealth dataset of trade challenges to national health regulations at World Trade Organization, 1995–2016 [Accessed April 2022]