Monday, 23 December 2013

The EU's 'lifestyle policy'

A paper has just been published online by Alberto Alemanno and Amandine Garde titled 'The Emergence of an EU Lifestyle Policy: The Case of Alcohol, Tobacco and Unhealthy Diets'. One of the few things I like about the EU is that they call 'public health' what it is: 'lifestyle regulation' and this is a fine example of it.

Did any of the member states who joined the EEC expect it to lead to an international 'lifestyle policy'? I doubt it, but we're going to get it anyway. The message of the Alemanno and Garde paper is that fundamental EU rights don't apply when public health/lifestyle regulation is involved. They claim that regulation is "more pressing than ever" as a result of non-communicable diseases (NCDs).

NCDs account for nearly 86% of deaths and 77% of the disease burden in Europe.

That's not enough. The target should be 100%. People should be dying of non-communicable diseases. It's the communicable diseases that need to be avoided. Insofar as 'public health' has a legitimate purpose, it is to protect the public from communicable diseases. The fact that it now focuses on the complete opposite shows how confused and obsolete it is. 2008, 36 of the 57 million deaths globally (63%) were attributed to NCDs

Why do you think mortality from NCDs is lower in the rest of the world than in Europe? Because most of the rest of the world isn't as healthy and doesn't live as long. NCD incidence rises as life expectancy rises. That's a good thing.

By recognizing NCDs as largely preventable, the [World Health] Assembly urged the international community to take action at global, regional and national levels to prevent and control their surge.

But they are not "largely preventable". Can the Assembly really believe such a thing or were they just lobbied by a bunch of fruitcake NGOs to set targets that can only be met by spreading contagious diseases?

Be under no illusion, nobody dies of old age in clinical terms. Even Auntie Nora who died in bed at 103 technically died from a respiratory or circulatory disease, ie. an NCD. Trying to prevent NCDs per se (as opposed to preventing them below a certain age) is simply absurd. As I wrote in Spiked last year, it gives the lifestyle regulators "what every trigger-happy army general wants: a war without end."

I'm sure you can guess where the lifestyle regulators are focusing their attentions...

To this end it recommended the adoption of a ‘regulatory mix’ of cost-effective, population-wide interventions to reduce the impact of the four main NCD-risk factors, namely tobacco use, the harmful use of alcohol, unhealthy diets and lack of physical activity

As usual, smoking is seen as the blueprint to be replicated.

...exposure to tobacco prevents the fulfilment of the right to health, as well as several health-related rights, including the right to life, the right to a clean environment and the right to information. Tobacco control measures are intended to implement the commitments of public authorities to respect, protect and fulfil these rights. This argument could be extended to cover other NCD risk factors such as alcoholic beverages and unhealthy food. 
...the case law developed thus far may be extended by analogy beyond tobacco to justify EU actions in areas such as the fight against harmful use of alcohol and unhealthy diets.

...the EU tends to be in a better position than Member States to regulate the composition, labelling and presentation of products such as tobacco, food and alcoholic beverages that are traded extensively across borders within the EU. Hence, the broad range of measures that the EU has adopted on the content, labelling or packaging of tobacco and food products. Further EU measures could be envisaged to regulate the labelling of alcoholic beverages, to mandate the plain packaging of tobacco products or to ban the use of trans-fats in foods

This roll out was predicted by libertarians for years. It is now undeniable.

The Commission has – to date – failed to explain why the market for alcoholic beverages should be treated so distinctly from the market for tobacco products

Er, the usual reason—given by those nice, honest anti-smoking campaigners, no less—is that tobacco is a 'unique product' and that there is no 'slippery slope', but I guess that's all forgotten now.

The problem for the lifestyle regulators is that, for all its faults, the EU was created as a free trade zone and it actually has some pretty good constitutional protections.

EU measures promoting healthier lifestyles must comply with EU fundamental rights. The EU is ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’, and in particular the EU Charter of Fundamental Rights, the European Convention on Human Rights (ECHR) and the general principles of EU law resulting from the constitutional traditions common to the Member States.

For example, did you notice that there was no display ban mentioned in the Tobacco Products Directive?

The Philip Morris judgment delivered in September 2011 by the EFTA Court provides some guidance on this point. The Court held that ‘by its nature’ a visual display ban of tobacco products is not only liable to favour domestic products over imported ones – as consumers tend to be more familiar with the former, but also that such a discriminatory effect would be particularly significant with regard to market penetration of new products.

Similarly, there was no mention of another of the anti-smoking wingnuts' pet projects, banning cigarette vending machines. its public consultation, the Commission asked whether it should propose legislation banning tobacco vending machines. However, in its proposal for a revised TPD, the Commission does not make any reference to bans on tobacco vending machines. Rather, the impact assessment confirms that this option has been discarded ‘given subsidiarity concerns’.

Fortunately for the prohibitionists, the EU is prone to ignoring many of the fundamental rights when it comes to 'public health'.

Industry operators have systematically invoked fundamental rights when challenging lifestyle measures. In particular, they have argued that EU measures regulating the content, the presentation (including the labelling), the advertising or the promotion of their products infringe several of the fundamental rights they derive from EU law: the freedom of expression and information, the freedom to choose an occupation and the right to engage in work, the freedom to conduct a business and the right to property. 

Rightly so. Good for them. However...

Nevertheless, if it is true that all these rights are protected by the EU legal order, none of them are absolute and they may be restricted on grounds of public health protection.

...The Court has granted a particularly broad margin of discretion to the EU legislature in relation to the ‘lifestyle’ choices it has made and has never annulled any ‘lifestyle’ measures on the ground that they violated EU fundamental rights.

So they're "fundamental rights" unless people's lifestyles are involved? Not that fundamental, then.

How about freedom of expression?

Under Article 10 of the ECHR, ‘everyone has the right to freedom of expression’, and this provision has been held to apply not only to artistic and political but also to commercial expression, on the ground that consumers have the right to receive information on the goods and services available to them on a given market: ‘for the citizen, advertising is a means of discovering the characteristics of goods and services offered to him’. 

Sounds good. But...

Nevertheless, freedom of expression may also be restricted on public health and other public interest grounds provided that the restriction in question is proportionate.

You can read the whole, rather turgid document here. As usual, people in the public health racket think that they're above the law and it seems that the EU institutions are increasingly inclined to agree.


Wiel said...

I smell Big Pharma here. Does the EU follow the path of the WHO?

"In the 1980’s, however, the organization expanded its attention to noncommunicable disease, although it was limited by a budget frozen at $450 million. Today, the international agency now takes in more than $500 million a year, more than it gets from all its member nations. This money comes primarily from drug companies whose fortunes are intimately connected to its donations to WHO.

Although spokesmen deny WHO is influenced by the pharmaceutical industry, the drug companies’ internal documents give another perspective. According to the Seattle Times Daphne Fresle, a former top official in the WHO office that monitors worldwide pharmaceutical use, resigned in protest in 2002, complaining of the agency's relationships with drug makers. Unpublished documents of WHO reports first obtained by The Guardian newspaper in 2003 describe "undue influence" on guideline panels dealing with diets and food additives."

Ben said...

"exposure to tobacco prevents the fulfilment of the right to health, as well as several health-related rights, including the right to life, the right to a clean environment and the right to information"
A subtle way of re-interpreting the right into an obligation for the individual and a right for "Public Health" to intervene in individual lives.
I don't care about Public Health because I'm not "The Public", I'm not suffering from public health problems and I never will. Should I have health problems, then they are mine, not the public's. I would never go to my doctor claiming that I am publicly ill.