I. Introduction
The world is currently experiencing multiple disease outbreaks, many of which interact with one another to threaten public health. The COVID-19 pandemic is a notable example, given that it has devastatingly impacted both human lives and the economy. However, it is not the only one. The World Health Organization (WHO) has declared the increasing rates of overweight and obesity a global epidemic.Footnote 1 Sounding the alarm on the potential impacts of the obesity epidemic, the WHO has declared that ‘[i]f immediate action is not taken, millions will suffer from an array of serious health disorders’.Footnote 2 In fact, the literature on public health and nutrition has extensively documented how unhealthy dietsFootnote 3 negatively affect health and may lead to the development of chronic non-communicable diseases (NCDs). Obesity and overweight can strongly affect children, who can experience physicalFootnote 4 and mental healthFootnote 5 consequences.
Although obesity is rooted in several environmental, social, cultural, and even genetic factors, food marketing is a leading cause of increasingly unhealthy food intake patterns. The sugary beverage and ultra-processed food industry has expanded rapidly in Latin America, particularly through expensive marketing campaigns which facilitate children’s exposure and access to unhealthy diets. To discourage the consumption of unhealthy food and beverages, the WHO has recommended restricting the marketing of these products to children.Footnote 6 Although many countries have adopted legislation banning these practices, many others have yet to develop such laws, giving the industry vast leeway to market its products directly to children.
Within the field of global health law, the question of how law can be a tool for the prevention of NCDsFootnote 7 and obesityFootnote 8 – and, particularly, how international human rights law can frame both states’ and businesses’ duties with regard to the marketing of unhealthy products – has gained increasing attention in recent years.Footnote 9 Moreover, from a business and human rights perspective, recent attention has been placed on how businesses can be held responsible for the marketing of certain food and beverages and how the principle of due diligence should be applied.Footnote 10 However, most of this literature focuses on legal developments in the Global North, with scant attention to the Global South. Concerning Latin America in particular, there is little work on how businesses and states alike can frame their responsibilities and duties in relation to the marketing of food and beverages.Footnote 11 This article seeks to fill this gap by drawing on the Latin American context to analyse businesses’ responsibilities and states’ duties with regard to the marketing of ultra-processed products. To do this, this article utilizes the three pillars of the United Nations Guiding Principles on Business and Human Rights (UNGPs), as well as standards from international human rights law and the inter-American system of human rights. The article also looks at how these normative duties have been implemented in the region and what challenges lie ahead.
This article is divided into five parts. After the introduction (part I), the article explains the impact of food and beverage marketing on children’s health and how changes in Latin American dietary patterns are taking place in the context of a growing and profitable market for ultra-processed food and beverages (part II). It then turns to the role of two key actors in the marketing of unhealthy products to children: businesses and states. Specifically, it analyses the food and beverage industry’s responsibilities regarding the marketing of unhealthy products (part III), and Latin American states’ duties to regulate, supervise and monitor businesses (part IV). Finally, the last section provides some conclusions (part V).
II. The Impact of Unhealthy Food and Beverage Marketing on Children’s Health
This section explores how ultra-processed food and beverages affect the health of vulnerable populations, such as children. To this end, it explains how consuming such products affects human health in both the medium and long term, and outlines the role of marketing in children’s development of dietary habits. It also discusses how Latin America is experiencing rapid changes in its population’s dietary habits and its food systems, often as a result of the accelerated use of marketing targeting vulnerable populations in an effort to capture a profitable and growing market.
Unhealthy Diets, Obesity, and Marketing to Children: Connecting the Dots
Unhealthy diets have been proven to be a contributing factor to overweight and obesity. These two health conditions, in turn, increase the risk of developing certain diseases – such as diabetes mellitus, cardiovascular disease, cancer, cavities, and other NCDs – both in children and in adults.Footnote 12 Additionally, recent studies have found a relationship between the consumption of ultra-processed products – which are usually high in saturated fat, added sugars, and added sodiumFootnote 13 – and an increased risk of premature death.Footnote 14 Unhealthy dietary patterns have become the third leading risk factor associated with disability-adjusted life years and the second leading risk factor associated with mortality in Latin America and the Caribbean.Footnote 15
Obesity and overweight have serious consequences in children’s health, as children tend to remain obese into adulthood and are more likely to develop NCDs such as diabetes and cardiovascular disease at a young age.Footnote 16 Childhood obesity is also associated with many co-morbid conditions, such as ‘metabolic, cardiovascular, orthopedic, neurological, hepatic, pulmonary, and renal disorders’.Footnote 17 Children may also face emotional impacts, including low self-esteem and depression.Footnote 18
The social, economic and cultural determinants of health play a role in the development of overweight and obesity.Footnote 19 Among them, commercial determinants, which are understood as ‘the conditions, actions and omissions by corporate actors that affect health’, are key factors.Footnote 20 One important commercial determinant is exposure to ultra-processed food and beverage marketing. Such exposure influences an individual’s preferences and consumption habits by encouraging the consumption of products that are low in nutritional content and often high in saturated fats, added sugars and sodium.Footnote 21 Thus, it is unsurprising that exposure to the marketing of unhealthy food and drinks is linked to a higher caloric intake and, in turn, to childhood obesity.
Psychological and behavioural studies shed light upon how marketing influences children’s consumption habits. According to a large body of evidence, children do not have the cognitive capacity to distinguish between information and marketing, which increases the likelihood that marketing will influence their behaviour.Footnote 22 Research on child cognitive development reveals that children under 12 years of age are not able to fully appreciate the commercial purpose of advertising and therefore are highly vulnerable to its persuasive techniques.Footnote 23 These studies strengthen the argument that marketing products to children, in particular to those under 12, is inherently misleading because it takes advantage of their lack of cognitive development in order to sell products.Footnote 24
Moreover, several studies have found that two-year-olds are able to recognize brand logosFootnote 25 and that five-year-olds can remember brand logos viewed on television.Footnote 26 Preferences for certain brands and brand equity characters may persist even when children become adults. Studies have also shown links between food packaging and young children’s taste preferences and product preferences.Footnote 27
Although marketing may occur through different media, television is typically the most studied medium.Footnote 28 A scoping review regarding food marketing in Latin America found that most of the food and beverages advertised on television are ultra-processed food products with low nutritional value.Footnote 29 Moreover, the products advertised during children’s programming hours are of lower nutritional value than the ones advertised during general audience programming.Footnote 30
Other forms of marketing – such as digital marketing, which is typically offered through online-based digital technologies and platforms – are growing rapidly in Latin America.Footnote 31 Although the evidence on the impact of digital marketing on children’s consumption is still emerging given that these technological developments are relatively new,Footnote 32 children’s exposure to online marketing will likely increase in the near future and therefore require the decisive action of relevant actors.Footnote 33
Latin America: Changes in Dietary Patterns and a Growing Market for Ultra-Processed Food and Beverages
Several studies characterize Latin America as a region undergoing rapid changes in its population’s eating habits, including an increasing rate of ultra-processed food and beverage consumption. According to Popkin and Reardon, changes in the food system (led by income growth, market liberalization, infrastructure improvements, urbanization, and the rise of rural nonfarm employment),Footnote 34 as well as changes in food production (the decline of homemade food and the increase in industry-processed food), have facilitated these dietary shifts.Footnote 35 Food system and food environment transformations have changed consumers’ behaviour; this has created an incentive for markets to continue investing in strategies to accelerate consumption, which, in turn, has accelerated the food system’s transformation. As Popkin and Reardon state, food system changes ‘[have] altered their behaviour as food consumers, and that changed behaviour [has] sent a signal to the private sector to invest further in the food transformation, so that the process [is] iterative, a snowball’.Footnote 36
In 2015, Latin America boasted the world’s highest daily per capita purchases of sugar-sweetened beverages.Footnote 37 While economic crises may have changed the region’s consumption habits, the beverage industry still identifies Latin America as a growing market for its products.Footnote 38 Additionally, from 2009 to 2014, Latin American consumers increased their ultra-processed food purchases, a trend that is expected to grow.Footnote 39
Eating-habit shifts in Latin America have also made market access a coveted goal for the ultra-processed food and beverage industry. The value of the sugary beverage market in Latin America was estimated to be around US$1.88 billion in 2018, and it is expected to rise to about US$2.28 billion by 2023.Footnote 40 This market takeover serves as an important incentive for companies to continue expanding their advertising and marketing strategies in Latin America, as well as to target new consumers such as children, women and ethnic populations.
To counter the excessive influence of marketing on children’s consumption habits, international organizations such as the WHO and the Pan American Health Organization (PAHO) have recommended that countries take measures to restrict the marketing of ultra-processed food and sugary drinks to children.Footnote 41 However, the unanimous recommendations of these organizations, while useful for informing state action, are not legally binding.Footnote 42 Moreover, solving the problem that the marketing of ultra-processed food and beverages poses for children’s health requires concerted action by a range of actors – especially businesses and states. In this light, the following sections focus on the human rights responsibilities and duties held by businesses and states in this area.
III. Corporations’ Responsibilities Regarding Unhealthy Food and Beverage Marketing
Corporations are key actors in the marketing of unhealthy products – after all, they are the ones who conduct such marketing and profit from it. Although most countries have regulated the marketing of other unhealthy products, such as tobacco and alcohol, the marketing of food and beverages remains unaddressed in many Latin American countries. Taking advantage of this regulatory vacuum, some corporations widely market their products to children. This section explores the human rights responsibilities of the food and beverage industry with regard to marketing to children.
Corporations’ Responsibility to Respect Human Rights
The UNGPs provide the most authoritative framework for business responsibilities with regard to human rights. They are based on three pillars: states’ duty to protect human rights; corporations’ responsibility to respect these rights; and victims’ right to access a remedy. The commentary to the principles clarifies that the nature of this business responsibility ‘is a global standard of expected conduct for all business enterprises wherever they operate’.Footnote 43 Thus, while the state duty to protect human rights is an obligation under international law, the corporate responsibility to respect human rights is interpreted as a social expectation.Footnote 44 Regardless of the differences in origin of these two duties, this interpretation does not lessen the importance of corporate responsibility in the eyes of the global community. To the contrary, by distinguishing social expectations from international obligations, the UNGPs move beyond the discussion of whether corporations have human rights duties under international law, which has been a highly debatable issue.Footnote 45
The second pillar of the UNGPs emphasizes the principle that ‘business enterprises should respect human rights’. According to Principle 11, ‘[t]his means that [business enterprises] should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved’. In terms of how business enterprises might be involved in adverse human rights impacts, Principles 13 and 19, as well as the UN’s interpretive guide on the UNGPs, note that such involvement can occur in three ways: causation, contribution, and linkage with a third entity.Footnote 46 While food companies are not the sole cause of overweight and obesity, there is sufficient evidence confirming that their aggressive marketing strategies, particularly towards children, play an important role in the creation of unhealthy eating habits and, in the medium and long term, in childhood obesity. Footnote 47 Therefore, food and beverage corporations may arguably contribute to the increasing obesity rates among children when targeting their unhealthy products to them. In fact, the interpretive guide includes ‘targeting high-sugar foods and drinks at children’ as an example of how corporations contribute to adverse human rights impacts.Footnote 48 If corporations want to take their commitment to respect human rights seriously, they should not market unhealthy food and beverages to children.
Several human rights bodies have also recognized the responsibility of food and beverage companies to respect human rights, particularly the rights to health and food. The Committee on Economic, Social and Cultural Rights (CESCR), in its General Comment 14, notes that ‘[w]hile only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society […] – as well as the private business sector – have responsibilities regarding the realization of the right to health’.Footnote 49 Similarly, a 2014 report of the Special Rapporteur on the Right to Health states, ‘Although international human rights instruments refer to States as primary duty-bearers, non-State actors are also charged with the responsibility to respect the right to health’.Footnote 50 It has also highlighted that ‘[I]n light of the negative impact of food marketing and promotion activities on children’s diets, the food industry has the responsibility to refrain from advertising unhealthy products to children in accordance with national laws and regulations. Failure to exercise such restraint under domestic law may amount not only to a violation of the law, but also of the right to health’.Footnote 51
From a right to food perspective, the former Special Rapporteur on the Right to Food, Hilal Elver, recognizes that ‘[p]lacing nutrition governance within the human rights framework also underlines the responsibility of corporations in the food and nutrition industry to respect human rights’.Footnote 52 During her tenure as Special Rapporteur, she even referred to the UNGPs that recognize corporations’ duty to avoid infringing on human rights. As she notes, ‘[l]ogically, this responsibility includes the adverse impacts of the food industry with respect to the right to adequate food’.
Thus, food and beverage companies’ responsibility to respect human rights is a clearly recognized standard, not just in the UNGPs but also in international human rights law.
Corporations’ Responsibility to Carry Out Due Diligence
Human rights due diligence is a key principle by which businesses are expected to abide in order to address any adverse human rights impacts caused by their activities. Such impacts include both actual impacts (impacts associated with existing operations) and potential impacts (those that may occur in the future). While most of the literature recognizes that due diligence must be applied by companies as part of their responsibility to respect all human rights,Footnote 53 recent scholarly works highlight the right to health as a silent human rights issue requiring greater attention.Footnote 54 This section describes how food and beverage companies can incorporate a right to health due diligence approach in their marketing activities and identifies some of the mis-steps that they have committed in this regard.
According to the UNGPs, businesses should adopt a policy commitment to respect human rights (Principle 15). Such a policy should be approved at the most senior level of the corporation and should be publicly available and communicated to all personnel (principle 16). Furthermore, this decision must be part of a real commitment to society and not simply to shareholders. Mechanisms designed solely to silence critics, or which are implemented only by a company’s middle or lower management levels, should not be considered an appropriate application of a company’s human rights responsibilities.
The UNGPs also establish that ‘in order to identify, prevent, mitigate and account for how they address their adverse human rights impact, business enterprises should carry out human rights due diligence’ (principle 17). According to this idea, the due diligence process should include four levels of action: ‘assessing actual and potential human rights impacts; integrating and acting upon the findings; tracking responses; and communicating how impacts on human rights are addressed’.Footnote 55
This framework can be interpreted in the context of marketing food and beverages to children. Concerning the first component – policy commitment – it means that business enterprises should include an explicit commitment to respect children’s right to health and, as a consequence, to not direct their advertising towards children. However, as Oliver Bartlett has pointed out, according to publicly available databases that track corporate engagement with human rights, with the sole exception of one company, companies operating in the food and agriculture sector have made no ‘specific reference to protecting the right to health in [their] human rights, sustainability, or ethics policy statements’.Footnote 56
That said, most multinational food and beverage companies have agreed to ‘responsibly market their products to children’ by following the International Food and Beverage Alliance’s (IFBA) Responsible Marketing Policy. IFBA is a global alliance founded in 2008 by the world’s leading food and non-alcoholic beverage companies.Footnote 57 According to its Responsible Marketing Policy, all IFBA members commit either to ‘[o]nly advertise products to children under the age of 13 years that meet common nutrition criteria which are based on accepted science-based dietary guidance; or [n]ot to advertise their products at all to children under the age of 13 years’.Footnote 58 They also agree ‘not to engage in food or beverage product marketing communications to children in primary schools, early childhood education centers and children’s care service centers’.Footnote 59
While such statements seem like a step in the right direction, they cannot be considered substitutes for a business’s human rights policy commitment. For one, the IFBA’s policy does not adopt the human rights language or a more explicit commitment to respecting children’s right to health, instead simply upholding a more modest standard of ‘responsible marketing’. The commentary to Principle 12 of the UNGPs states that while the responsibility to respect applies to all rights, ‘in practice, some human rights may be at greater risk than others in particular industries or contexts, and therefore will be the focus of heightened attention’.Footnote 60 Here, it is important to acknowledge the food and beverage industry’s potential to impact children’s right to health in a severe manner – not just because of the scope of its impact (the potential for serious health issues and even death) but also because of the scale (given that the increasing numbers have led to a ‘global epidemic’). Thus, if companies are to abide by Principle 15 concerning policy commitments to respect human rights, they should include an express commitment to children’s right to health in their internal policies given this is one of the rights they will most likely impact.
Concerning the second component – carrying out due diligence – businesses should take a number of specific steps, as mentioned above. First, when assessing the actual and potential impacts, they should rely on the opinions of independent experts and the information available from international technical organizations (such as the WHO). PAHO and other WHO regional offices have extensively documented the negative effects of child-targeted marketing and have developed a nutrient profile model to help address this issue.Footnote 61 However, marketing policies such as the one published by IFBA fail to adopt this model, leaving the interpretation of nutritional criteria in the hands of companies.Footnote 62 This is problematic, as seen by the fact that many companies advertise ‘better for you’ products to children under 12 years old that do not comply with the model; and although such models have been available since 2015, an accountability evaluation published in 2019 ‘found no evidence that IFBA had adopted’ them.Footnote 63 Moreover, marketing policies such as IFBA’s Responsible Marketing Policy do not follow the definition of children established in the Convention on the Rights of the Child (which defines a child as anyone under the age of 18), instead limiting their commitment to children under the age of 13, or sometimes even 12. If businesses are to fully commit to respecting children’s rights, they should rely on independent scientific evidence and incorporate all human rights standards of interpretation – not just those that are convenient for their practices.
Finally, the steps of ‘tracking responses’ and ‘communicating how impacts on human rights are addressed’ means that businesses should follow up on their conduct in a rigorous and transparent manner. A good practice in this regard is delegating an independent third party with the collection and analysis of such information. Although IFBA claims that it ‘will conduct third party monitoring to demonstrate compliance with this policy’,Footnote 64 independent reports have highlighted the need for more transparency and openness in the sharing of the information gathered.Footnote 65 Due diligence requires more than just a statement. It requires the full disclosure of information with third parties, as well as transparency in the actions taken to address impacts on children’s right to health.
Latin American Food and Beverage Companies’ Commitments
Food and beverage companies that operate in Latin America also rely on codes of conduct and statements of commitment to assert their respect for children’s rights. Business marketing associations in Mexico,Footnote 66 BrazilFootnote 67 and ColombiaFootnote 68 have published codes of conduct concerning the marketing of products. These instruments are often displayed as examples of companies’ commitment to children’s health. However, their content is often vague and diffuse. For instance, they allow marketing to children as long as it promotes ‘positive social values’, does not promote violence, or is not ‘misleading’. Moreover, they often leave the monitoring of the commitments to the business associations themselves. In the best-case scenarios, they include a commitment to share the findings with the minister of health.Footnote 69 All of these factors make these codes of conduct insufficient tools to guarantee that corporations in the food and beverage industry abide by their commitments.
In addition to codes of conduct for advertising, the industry has relied on self-regulation to show its commitment to children’s right to health. In Colombia, for example, in 2019, the Chamber of the National Beverage Industry (ANDI in Spanish) published a statement committing to refraining from selling sugary beverages in schools and from directing sugary beverage advertisements to children under 12.Footnote 70 The statement also notes that a third party will measure compliance.Footnote 71
Like the IFBA’s Responsible Marketing Policy, ANDI’s commitment has been criticized for not incorporating the PAHO nutrient profile model into its definition of products that can be advertised. It also limits its protection to children under the age of 12, sidestepping the recommendations of PAHO and the definition of children established in the Convention on the Rights of the Child.Footnote 72 Furthermore, the commitment is incomplete in terms of the communications strategies and techniques included, as it fails to limit specific types of product marketing, such as the use of children’s characters, promotions, gifts, and other types of strategies which could appeal specifically to children. It also neglects to include product placement restrictions and to ban companies from marketing their products in places where children are often present, such as schools, childcare facilities and playgrounds.Footnote 73 Importantly, the statement does not include all members of the sugary beverage industry, meaning that certain companies may continue to freely market their products to children.
Moreover, despite its proclamation that a third party is in charge of monitoring compliance, the statement fails to promote transparency because it reserves for the industry the right to take action and to rectify violations. For example, it does not oblige the industry to publish compliance reports or require companies to disclose all information requested by this third party. Lastly, the statement does not provide a mechanism whereby parents can denounce compliance failures or request non-repetition, thus failing to include an appropriate remedy for parents and children.
The Colombian sugary beverage industry’s self-regulatory practices reflect a general global trend in such schemes. A 2014 literature review concluded that ‘commitments in industry self-regulation schemes tend to be relatively vague and permissive, that the measurable effects of the self-regulations tend to be relatively small and that some extent of public regulation may catalyse the effectiveness of industry self-regulation’.Footnote 74 In fact, and as many authors have shown, some industries may use self-regulatory mechanisms as a discursive strategy to influence public policy and public opinion in a way that is favourable to their interests without having to actually commit to respecting human rights.Footnote 75
Corporations’ Human Rights Commitments versus Their Use of Tactics to Prevent State Regulation
As discussed above, if corporate commitments to respect human rights are to be effective, they must be taken seriously and embraced by the highest levels of a company. Moreover, they must also be embraced externally to the company, not just internally. In this regard, corporations must avoid taking any action that might interfere with states’ efforts to regulate and monitor the marketing of unhealthy food and beverages. As stated in the commentary to the UNGPs, ‘just as States should work towards policy coherence, so business enterprises need to strive for coherence between their responsibility to respect human rights and policies and procedures that govern their wider business activities and relationships’.Footnote 76 A business that commits to respecting human rights would contradict this effort if it were to actively lobby, either independently or through intermediaries, against laws that seek to protect public health. Similarly, the Inter-American Commission on Human Rights (IACHR) has endorsed this responsibility by criticizing practices of interference used by industries in order to hinder regulatory efforts, such as threatening governments with lawsuits, lobbying policy makers, and funding biased studies in companies’ favour.Footnote 77
From a conceptual point of view, some authors have argued that the behaviour of the food and beverage industry can be framed as ‘corporate political activity’Footnote 78 or ‘corporate capture’.Footnote 79 Within this framework, and replicating the tobacco industry’s anti-regulatory tactics,Footnote 80 corporate activities designed to prevent effective regulation may include direct corporate involvement and influence in the political sphere (e.g., lobbying to influence legislation, using ‘revolving door’ tactics, and funding and providing incentives for politicians), legal actions (e.g., initiating legal proceedings to stifle public policies or opponents or to influence the development of trade and investment agreements), coalition management (e.g., establishing relationships with key opinion leaders, seeking involvement in affected communities, and establishing relationships with the media), and information management (e.g., the production and amplification of information designed to generate industry credibility among the public).Footnote 81
It is beyond the purpose of this article to characterize the food and beverage industry’s behaviour in every Latin American country. However, there is a large amount of literature documenting how the industry has utilized the aforementioned strategies to prevent the implementation of public health regulatory measures that limit its ability to freely market its products.Footnote 82
The industry’s use of direct lobbying techniques aimed at stopping legislative initiatives to regulate food and beverage marketing have been documented in Chile,Footnote 83 MexicoFootnote 84 and Colombia.Footnote 85 In addition, the industry has used other strategies, such as saturating the public with messages favourable to its interestsFootnote 86 and filing lawsuits to demonstrate apparent incompatibilities between marketing restrictions and intellectual property claims.Footnote 87 All of these strategies to influence or hinder marketing regulations may explain the delays of some countries in adopting stricter regulations. If businesses are coherent in their human rights commitments, they must not only refrain from marketing unhealthy food to children but also abstain from utilizing these direct and indirect strategies to prevent the state from regulating.
The Way Forward
This section has outlined the requirements of a human rights due diligence approach with regard to food and beverage companies’ marketing of their products. It has also shown how these companies rely mainly on self-regulation and statements of commitment to replace such an approach. In countries where national laws place general due diligence obligations on corporations, these laws could be used to force them to abide by stricter human rights policies that truly respect children’s right to health.Footnote 88 However, this - although desirable - does not seem feasible in the short term in Latin America, as no country in the region has adopted such a law to date. Although the IACHR has recommended that states adopt legislation that imposes human rights due diligence obligations on businesses,Footnote 89 countries in the region are still reluctant to do so. Nonetheless, this does not mean that governments have no role in holding food and beverage companies accountable for their right to health responsibilities. The next section discusses how international human rights laws places particular obligations on states to regulate food and beverage marketing.
IV. States’ Human Rights Duties regarding Ultra-Processed Food and Beverage Marketing
Given that efforts to hold businesses directly responsible still face many challenges, the role of states is critical in the design of a framework that protects children from the abusive marketing of unhealthy products. This section analyses the role of states and their obligations under international human rights law in the regulation of food and beverage marketing. As the focus of this article is on Latin America, the section focuses on the obligations stemming both from international human rights treaties ratified by Latin American countries and from the inter-American human rights system.
International human rights law can be used as a tool to indirectly hold businesses accountable. This body of law – which is based on binding legal instruments – views states as the main duty-bearers and people as right-holders, thus enabling actors to hold states accountable for their actions or omissions. Under this framework, state duties are translated into a tripartite model of obligations according to which states must respect, protect and fulfil human rights.Footnote 90 In particular, the duty to protect – which mandates that states take action to prevent third parties from interfering in the enjoyment of rights – provides a useful tool to hold businesses accountable.
The duty to protect parallels the first pillar of the UNGPs, according to which states have a duty to protect people against corporate human rights harms. The commentary to this pillar emphasizes that ‘[s]tates must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication’.Footnote 91 International human rights law – particularly the provisions stemming from UN bodies on the rights to health and food, the Convention on the Rights of the Child, and the inter-American system – provides a well-established set of state obligations that can be harnessed to ensure corporate accountability.
States’ Human Rights Obligation to Prevent Obesity and Promote Access to Nutritious Foods, according to UN Bodies
Most human rights analyses of obesity prevention have occurred within the context of the right to health and the right to food, both part of the International Covenant on Economic, Social and Cultural Rights (Articles 12 and 11). The work of Special Rapporteurs and the CESCRFootnote 92 has focused on the connection with these two rights to denounce the harmful effect of marketing on children’s rights and the duty of states to regulate this field.
With respect to the right to health, a 2014 report from the Special Rapporteur on the Right to Health clarifies the content of the obligation to protect in the context of NCDs by noting that ‘States should make sure that advertisements and promotion by food corporations convey accurate and easily understandable information on possible ill effects of their food products. This is important, as withholding or misrepresenting suchinformation is likely to affect people’s diet choices, which impacts on the right to health’.Footnote 93
Moreover, the report emphasizes the different duties states must take in order to fulfil the right to health in the context of NCDs. For states to fulfil their obligations and prevent harm to people’s health, they should, at a minimum, establish a regulatory framework which restricts children’s exposure to unhealthy product marketing.Footnote 94 It also points out how companies frequently use insidious marketing strategies to influence dietary habits by encouraging vulnerable groups – such as children – to consume unhealthy diets, thus emphasizing that ‘States have a positive duty to regulate unhealthy food advertising and the promotion strategies of food companies’.Footnote 95 Finally, the rapport stresses how different countries have embraced this responsibility by instituting laws to ‘ban companies from advertising their products to children below a certain age and to limit the availability of unhealthy foods in schools’.Footnote 96
Similarly, from a right to food perspective, both the Special Rapporteur on the Right to Food and the CESCR have emphasized the duty to protect in order to ensure the right to adequate food; prevent the harmful impact of marketing on the exercise of this right; and establish states’ duty to provide regulatory measures that limit the influence of such marketing.
First, the CESCR, in its General Comment 12, notes that the duty to protect requires states to take measures to ensure that ‘enterprises or individuals do not deprive individuals of their access to adequate food’.Footnote 97 It defines ‘adequate food’ as ‘food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances’.Footnote 98 Although the expression ‘free from adverse substances’ was first interpreted as setting requirements only for ‘food safety’,Footnote 99 the Special Rapporteur on the Right to Food has clarified that when ‘considering the adverse health impacts, “food safety” should be interpreted to include the nutritional value of food products’.Footnote 100
Second, the Special Rapporteurs on Food have recognized the abusive practices that the food and beverage industry has displayed towards consumers, particularly children, and the damaging effect it has on their health, including increasing levels of childhood obesity. This observation has been consistently included in reports from 2011,Footnote 101 2014Footnote 102 and 2016.Footnote 103
Third, the CESCR has recognized that the duty to protect the right to food should be understood as a duty to protect people from food companies’ actions, such as aggressive marketing strategies, that could infringe upon access to quality and nutritious food. In General Comment 24, the CESCR states that ‘[t]he obligation to protect sometimes necessitates direct regulation and intervention. States parties should consider measures such as restricting marketing and advertising of certain goods and services in order to protect public health’.Footnote 104 In line with this, the Special Rapporteur on the Right to Food has consistently recommended that states regulate marketing as a way to prevent its negative impact.Footnote 105
To conclude, the duties to protect and fulfil the rights to health and to food provide a strong basis for asserting that states have a human rights duty to regulate the food and beverage industry’s marketing of unhealthy products, given that these practices have been proven partly responsible for increasing obesity rates among children and therefore detrimental to their rights.
The Convention on the Rights of the Child and States’ Duties regarding Childhood Obesity Prevention
The Convention on the Rights of the Child and its committee’s interpretations provide a rich framework for states’ duty to prevent childhood obesity.Footnote 106 The convention’s general principle of the best interest of the child (Article 3.1) and the right to non-discrimination (Article 2), when read in conjunction with the rights to life, health and food, establish a state duty to regulate the marketing of unhealthy products targeted at children. In its General Comment 15, the Committee on the Rights of the Child notes that states have a duty to address obesity in children given that obesity is associated with detrimental impacts to their physical and mental health.Footnote 107 It also establishes that ‘the marketing of [unhealthy foods] – especially when such marketing is focused on children – should be regulated and its availably in schools and other places controlled’.Footnote 108 Moreover, in its General Comment 16, the committee highlights the long-term impact that the marketing of unhealthy foods and drinks may have on children’s health and therefore their rights to life and development.Footnote 109 It also mentions that in order to implement the right to life with regard to the business sector, states need to take ‘preventive measures such as effective regulation and monitoring of advertising and marketing industries and the environmental impact of business’.Footnote 110
Other children’s rights – such as the right to privacy (Article 16), the right to education (article 28), the right to rest, leisure, recreation and cultural activities (Article 31), and the right to be protected from economic exploitation (Article 32) – may arguably be impacted by food and beverage marketing as well.Footnote 111 As all Latin American countries have ratified the Convention on the Rights of the Child, and many of them recognize it as being of either constitutional hierarchy or relevant for the interpretation of constitutional duties,Footnote 112 it becomes a strong instrument for cementing states’ duty to regulate food and beverage marketing.
The Inter-American Human Rights System and States’ Duties Regarding Obesity Prevention
The inter-American human rights system provides an additional legal framework through which Latin American states can frame their duties regarding the prevention of NCDs, childhood obesity, and the provision of nutritious food.
To begin with, the inter-American system has recently acknowledged the rights to healthFootnote 113 and to foodFootnote 114 as autonomous rights within Article 26 of the American Convention on Human Rights and therefore as directly justiciable before the Inter-American Court of Human Rights (IACtHR).Footnote 115 Although this recognition is not yet a pacific issue among judges,Footnote 116 it could open the door for a discussion on the marketing of unhealthy products and the development of NCDs.Footnote 117 Also, even if these rights are not directly justiciable, there is an extensive jurisprudence recognizing indirect protection of the right to health when linked with the right to life and human dignity.Footnote 118 As mentioned above, both the scientific evidence and international human rights law have recognized the direct relationship between the marketing practices of the food and beverage industry and the increasing levels of childhood obesity. Thus, it is possible to argue that such marketing may affect both the quality of life and life itself – and therefore that the right to health in connection with right to life is affected by marketing practices. To conclude, whether through the direct application of the rights to health and food or through the indirect application of the right to health in connection with the right to life, the inter-American system stands on promising ground to uphold states’ duty to prevent health-related harm caused by the food and beverage industry.
Furthermore, in recent years, the inter-American system has developed a clear and consistent framework for understanding state obligations with regard to business activities. In a 2019 report titled Business and Human Rights: Inter-American Standards,Footnote 119 the IACHR interprets the general duties of respect and guarantee established in Articles 1 and 2 of the American Convention on Human Rights in the context of corporate activities.Footnote 120 In doing so, the commission recognizes that states’ duty to guarantee human rights within the inter-American human rights system parallels the first pillar of the UNGPs,Footnote 121 which establishes states’ duty to protect human rights.
In the report, the commission highlights four general duties of states in the context of business activities: the duty to prevent, the duty to monitor, the duty to regulate or to adopt all domestic measures, and the duty to investigate, punish and redress. In particular, the duties to prevent and regulate are useful for understanding state obligations regarding the marketing of unhealthy products. First, the duty to prevent means that states must adopt all measures necessary to prevent corporate activities that a corporation knows or should have known will result in a human rights violation.Footnote 122 As explained in section III, several human rights bodies have already drawn attention to the harmful impacts of the food and beverage industry on children’s health. As the absence of regulation facilitates the industry’s actions, it could be argued that states that do not regulate this sector are in violation of their duty to prevent human rights violations committed by food and beverage companies.
Second, according to the IACHR report, the duty to regulate or to adopt all domestic measures necessary to control corporations’ activities covers both substantive and procedural laws, including civil, administrative and criminal laws.Footnote 123 The report clarifies that states must regulate business activities and provide an adequate legal framework as part of their human rights duties.Footnote 124 The report even goes one step further by interpreting these duties in the context of unhealthy industries. For example, it explicitly highlights how the consumption of ultra-processed food, tobacco and alcohol negatively affects the right to health of children.Footnote 125 In this respect, the commission acknowledges that states have a duty to ‘establish and enforce regulatory frameworks and to adopt measures that effectively prevent, address and punish the negative commercial negative impacts on the rights of children and adolescents’.Footnote 126 In the context of marketing ultra-processed food, this means that states should adopt legislation to restrict the marketing of these products to children, as well as to ensure that victims have effective redress mechanisms in cases where such marketing might occur.
This legal framework has been upheld by the IACtHR in several cases related to the actions of companies involved in dangerous activities. In Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and Their Families v Brazil, concerning the death of 64 people (including 22 children) following an explosion of a fireworks factory, the court confirmed that states have a duty to ‘regulate, supervise and monitor the implementation of dangerous activities’.Footnote 127 The same standard was included in the recent case of Buzos Miskitos v Honduras, which centred on the unsafe working conditions of Indigenous Miskito persons who practised deep diving for several fishing companies, many of whom ended up with serious disabilities and even fatal injuries.Footnote 128 In these cases, the court cited the UNGPs, recognizing a correlation between the state duties established under the inter-American system and the UNGPs.Footnote 129
Finally, the IACHR has argued that in order to uphold their duty to regulate, states should adopt a regulatory framework that makes human rights due diligence obligatory for businesses.Footnote 130 This is a novel interpretation that can be useful for holding food and beverage companies accountable in the future. As shown in the previous section, human rights due diligence, when applied to the food and beverage industry, could be a useful tool for the prevention of harmful marketing practices. However, given that no Latin American country has adopted human rights due diligence laws to date, this possibility remains a theoretical solution for the regulatory gap.
The above analysis of international human rights law and the inter-American human rights system provides a strong basis for concluding that states parties to the American Convention on Human Rights have a human rights obligation to regulate, supervise and monitor the marketing of unhealthy food and beverages to children. As a binding legal duty, if not implemented, it may give rise to the utilization of the complaint mechanisms established under the convention, thus opening the door for a deeper analysis of the food and beverage industry’s role in the development of NCDs. The next section explores the extent to which this duty has been implemented in select Latin American countries.
State Regulations on Food and Beverage Marketing in Latin America
In recent years, Latin American states have begun developing and implementing regulations on food and beverage marketing.Footnote 131 Such regulations can be divided into three groups: those that do not allow any marketing of unhealthy products to children at all; those that restrict marketing to certain media or during specific hours; and those that have very mild restrictions on food and beverage marketing to children.
In the first group is Chile’s law establishing a full prohibition on the advertising of food and drinks that are high in certain ingredients (namely saturated fat, added sugars and sodium) to children under 14. It also restricts the use of ‘commercial hooks’, such as children’s characters and games. The law’s definition of advertising is broadly worded, suggesting that the regulation extends to all types of media.Footnote 132 Studies on the Chilean experience confirm that children’s exposure to unhealthy food advertising via television has decreased significantly in the wake of the law’s passage.Footnote 133 Part of this positive outcome is due to the law’s effective implementation, which has involved the imposition of sanctions on some companies.Footnote 134
Brazil’s regulation on advertising to children can be also considered to fall under this group. The regulation considers all advertising targeting children as abusive and therefore prohibited under law.Footnote 135 It covers all types of products, not just food and beverages, and has been interpreted as encompassing a wide range of marketing practices. In a 2016 decision, the Superior Court of Justice held that any publicity directly or indirectly targeting children is abusive.Footnote 136 The case was related to a company’s marketing campaign encouraging children to obtain a wristwatch in exchange for five cookie wrappers and a small amount of money. The court found the company responsible for abusive advertising, explaining that this marketing practice violated the constitutional provision protecting children against exploitation, as well as the rights of parents to make free decisions concerning their children’s diets.Footnote 137 The same law has been also used to sanction companies for improper food advertising. For example, in 2018, McDonald’s was fined 6 million reais (approximately US$1 million) for organizing two Ronald McDonald performances in schools. The country’s consumer protection agency considered these performances to be abusive given that they were directed mainly at children and were deliberately intended to encourage them to consume McDonald’s products.Footnote 138
Peru’s legislation is also a remarkable example. The advertising of ultra-processed foods may not utilize techniques that exploit the naivety of children, nor may marketing strategies employ prizes, gifts or children’s characters to promote the acquisition of a product.Footnote 139 Moreover, those products high in sodium, sugar or fat must include a label of ‘high in’ and ‘avoid its consumption’ in both its package and publicity.
In the second category of regulations – those partially limiting the marketing of food and beverages – is Mexico’s 2014 regulation limiting the marketing of certain food and non-alcoholic beverages high in sodium, fat or sugar via television and cinemas. For television, it prohibits broadcasting during certain times that are considered children’s viewing time. For cinemas, it prohibits such advertisements during the showing of films aimed at families and general audiences.Footnote 140 The problem with this legislation, however, is that it leaves several elements unregulated. For example, it does not apply to certain programmes (such as soap operas and sports) that are popular among Mexican children.Footnote 141 Moreover, it does not include specific guidelines for digital marketing or for packaging. Concerning this latter aspect, Mexico passed a major reform in 2020 making front-of-package labelling compulsory for products high in certain nutrients and including specific restrictions on packaging. Under this regulation, products with one or more warning labels are not allowed to include children’s characters, cartoons, celebrities, athletes, pets or interactive elements (such as visual-spatial or downloadable games) that may incite or promote the products’ consumption.Footnote 142 This regulation has had a major impact on marketing by limiting an important form of publicity; however, the marketing of ultra-processed food and beverages may still reach children during certain television hours and via digital sites.
Finally, in the third category – countries that have not enacted specific legislation restricting the marketing of ultra-processed products to children – is Colombia. The country has a general regulation stipulating that messages addressed to children may not mislead, deceive or confuse.Footnote 143 This has been used to denounce very serious cases of misleading publicity targeting children. In 2020, for example, one of the country’s leading sugary beverage companies was fined for displaying misleading messages to children in a television advertisement that promoted sugary drinks as ‘fruit juices’ when their true fruit content was less than 7%.Footnote 144 However, this legislation has not prevented the sugary beverage industry from displaying advertisements to children as long as they are not ‘misleading’.Footnote 145 Although several bills have been presented to Congress in an effort to incorporate more stringent restrictions on marketing to children, none of them has passed, in large part due to the industry’s influence. Taking into account that Colombia has ratified most international human rights treaties and the American Convention on Human Rights, one could argue that the state’s failure to regulate the marketing of these products is a violation of its international obligations to protect children’s rights to health and food and to prevent, regulate and supervise the marketing activities of the food and beverage industry.
V. Conclusion
The marketing of unhealthy food and beverages to children is a common practice in Latin America that may contribute to overweight and obesity, both of which are risk factors for NCDs. As the COVID-19 pandemic has already claimed the lives of 5.2 million people,Footnote 146 measures to prevent another public health crisis, such as the rise of overweight and obesity, have become more urgent than ever. To this end, businesses and states alike should fulfil their human rights responsibilities and duties as outlined under the UNGPs and international law. This means that businesses should commit to respect human rights and to incorporate a human rights due diligence approach in their internal policies. Such policies, however, cannot be replaced by the self-regulatory commitments that the industry often displays as proof of its interest in children’s rights. While obligatory due diligence laws are not yet in place in Latin America, the responsibility of businesses to act with a right to health due diligence approach in their marketing practices is a globally recognized social expectation. Moreover, given that most Latin American countries have ratified most international human rights instruments and the American Convention on Human Rights, they have a binding legal obligation to regulate the marketing of unhealthy products in a way that prevents children’s exposure to it. The increasing trend among Latin American countries towards regulating the marketing of ultra-processed food and beverages is a promising start, but much remains to be done throughout the region.
Conflicts of interest
The author declares none.
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