INTRODUCTION Commercial Speech and the Commercial Determinants of Health (2022)

This article introduces a symposium that aims to identify and critically assess the legal strategies of the tobacco, alcohol, and food and beverage industries which rest on freedom of expression arguments.

Non-communicable diseases (NCDs), including cardiovascular diseases, cancers, chronic respiratory diseases, and diabetes, have become one of the most pressing global health concerns of the 21st century, accounting for 71% of deaths worldwide.¹ While NCDs affect individuals of all ages, gender, and socioeconomic backgrounds, they disproportionately impact those living in developing countries, and in turn, the most vulnerable groups within those countries. For instance, every year, 15 million people between the ages of 30 and 69 die from NCDs, with 86% of these premature deaths occurring in developing countries.² In this sense, the rapid growth of NCDs also threatens sustainable development.

Many of these diseases are attributed to four main modifiable and preventable risk factors: tobacco use, harmful consumption of alcohol, unhealthy diets, and physical inactivity.³ As the global burden of NCDs continues to rise, the imperative to protect public health by tackling these risk factors has been highlighted by international bodies including the World Health Organization⁴ and the United Nations General Assembly.⁵This understanding has also been reinforced by the recognition that NCD prevention and control is a fundamental human rights issue, connected with the right to health and other health-related rights, such as the right to information.⁶ Moreover, at the domestic level, many countries have enshrined analogous rights in their constitutions,⁷ while also adopting more specific NCD-related laws and policies in their legal frameworks, including pricing measures, labeling and packaging measures, and marketing and advertising restrictions.⁸

Nevertheless, progress to tackle NCD risk factors has been slow overall. Tobacco, alcohol and unhealthy foods and beverages continue to be extensively advertised or otherwise promoted by corporate actors. Taking advantage of the globalization of markets, aggressive and sophisticated marketing has spread to every part of the world, contributing to the rise of NCD illness and deaths in Africa, Asia, and Latin America, as well as in North America and Europe.Reference Freudenberg⁹ Across the world, these tactics are part of deliberate “strategies and approaches to promote products and choices that are detrimental to health,”Reference Kickbusch¹⁰which in the past years have been defined and analyzed as the commercial determinants of health.Reference Mialon¹¹

Corporate actors use a wide range of marketing strategies to increase both the exposure of consumers to marketing messages and the power of these messages, increasingly integrated, immersive, and personalized.Reference Freudenberg¹² In particular, the advent of digital technologies has facilitated the profiling of consumers, and corporate actors are increasingly relying on the extraction, processing, and use of personal data for marketing purposes, raising acute privacy as well as health concerns.Reference Théodore¹³ Moreover, in the context of the COVID-19 pandemic, the alcohol and the food and beverage industries, for example, have deployed marketing strategies which have been criticized as being unethical and incurring significant health implications.¹⁴Overall, the marketing of tobacco, alcohol, and unhealthy food and beverages negatively influences consumer preferences, purchase, and consumption patternsReference Smith¹⁵ and is therefore an integral part of NCD-promoting environments that States must address when seeking to reduce NCDs within their jurisdiction.

However, where States around the globe have sought to implement legal and policy measures to restrict or prohibit the marketing and advertising of tobacco, alcohol, and unhealthy food and beverages, corporate actors have developed a wide range of tactics to delay and defer the creation and implementation of such measures. The more robust and effective States regulatory measures are, the more States can expect to face the vigorous opposition of the corporate actors involved in the manufacture, distribution, and promotion of these products, services, and brands.¹⁶ Historically, tactics deployed by these industries have included legal challenges against measures that could reduce their profit margins, such as litigation grounded on creative legal arguments centered on the right to free speech (or right to freedom of expression), interpreted broadly in many jurisdictions around the world to include advertising and other forms of commercial expression.¹⁷

Reflecting on this context, this Special Issue on Commercial Speech and Commercial Determinants of Health aims to identify and critically assess the legal strategies of the tobacco, alcohol, and food and beverage industries which rest on freedom of expression arguments. This publication will provide the first international, multidisciplinary analysis of these arguments focusing on the relationship between, on the one hand, the right to free speech often invoked by corporate actors to protect their advertising and other marketing practices from regulation, and on the other, other competing rights that require protection from harmful marketing. By delving into those questions, this Special Issue examines this contentious relationship, seeking to provide insight into whether and to what extent marketing and advertising fall within the protection afforded to the right to free speech when balanced against other rights, not the least the right to health.

The first section introduces readers to the political, philosophical, and economic considerations associated with marketing and advertising restrictions in the context of unhealthy food. In one article, the authors examine the conceptual foundations of the restrictions to commercial speech in relation to unhealthy food, exploring the liberal and communitarian perspectives. In another, the author reviews the main normative and positive arguments that can be used in the assessment of the costs and benefits of food marketing restrictions from an economic perspective.

The second section provides a deep-dive into two other specific risk factors — tobacco use and the harmful consumption of alcohol —, examining the marketing and advertising tactics used by the relevant corporate actors involved in the promotion of these goods, services, and brands. In particular, these articles reflect on the international instruments significant to the regulation of the relevant industries, and on how these instruments have been implemented in different jurisdictions, considering the legal challenges associated with each NCD risk factor on the grounds of freedom of commercial speech.

Building on the first two sections, the third section reflects on the development in the case law of a number of established courts around the world and examines specifically how these courts have balanced the right to health and related rights with the right to free speech. Analyzing decisions made by courts in Colombia, the United States, Canada, Europe, India, and Europe, these articles provide insight into the definition and protection of commercial speech within their respective jurisdictions, the standards of review and evidence applied, and the margin of discretion granted to governments to prevent NCDs through the regulation of marketing and advertising practices.

Finally, the last section identifies a range of notable country case studies focused on key themes relating to the relationship between commercial speech and the commercial determinants of health, including Brazil, Chile, Barbados and Jamaica, France, and South Africa. These case studies provide a picture of the complexity of marketing regulation from a legal and policy perspective.

Overall, this Special Issue is meant to serve as a reference document for a multidisciplinary, international academic audience, as well as policymakers and other public health actors involved in the adoption and implementation of measures aimed to curb the rise of NCDs around the world. It provides a systematic understanding of a central debate around the role and capabilities of States in regulating the marketing and advertising of tobacco, alcohol and unhealthy food and beverages. Taken together, the articles of this Special Issue contribute to the understanding of marketing and advertisement from a rights-based perspective, providing insight into how jurisdictions around the world have — or are beginning to — address the tension between commercial speech and the commercial determinants of health.

In an upcoming issue, we will publish an article reflecting upon the key elements distilled from the various articles included in this Special Issue, providing a coherent framework on how to address the relationship between commercial speech, on the one hand, and the marketing and advertising restrictions of different unhealthy products, on the other hand, within different contexts around the world.

Find the original article here: https://www.cambridge.org/core/journals/journal-of-law-medicine-and-ethics/article/introduction-commercial-speech-and-the-commercial-determinants-of-health/865F4BD10525B9221C333E7AF3D7D79C# .