Front-of-package labelling: A public health imperative rooted in the right to health

Abstract

Background

Tackling the rise in non-communicable diseases stemming from the consumption of ultra-processed, nutrient-poor packaged foods is a growing health priority in South Africa. Front of package labels have emerged as an integral intervention to address the consumption of unhealthy foods that contribute to non-communicable diseases, yet laws mandating front of package labelling have faced counter arguments from the food and beverage industry. In this paper, we ground front of package labelling within the right to health, and highlight the comparative experience of countries that have implemented front of package labelling to foreshadow industry arguments against regulations published in South Africa.

Methods

The study uses a doctrinal methodology to examine the content and duties of the right to health by analysing legal texts, statutes, case law, and international treaties. The study also engages legal provisions and assesses judicial decisions to ascertain the scope of the right to health and the obligations imposed on states and other duty-bearers.

Results

International law, African human rights law and the South African law have the enabling framework that recognises front of package labelling as a component of the right to health. This triggers the obligation to take reasonable legislative measures to ensure realisation of the right. A human rights framing of front of package labelling is of paramount importance given the vulnerability of individuals when considered within the context of powerful corporations as determinants of health.

Conclusion

The positioning of front of package labelling as a fundamental right to health issue places obligations on the government of South Africa and other governments to stem the rising burden of non-communicable diseases and provides a mechanism to improve determinants of health among vulnerable populations.

Background

The number of people affected by non-communicable diseases (NCDs) is increasing at alarming levels globally fuelled by unhealthy diets characterised by the excessive consumption of sugars, fats and sodium [1]. The rise in NCDs is associated with severe consequences not only on the health and mortality of individuals but also on health systems, the economy and society. Globally, a total of 1.8 million deaths are attributed to excessive intake of sodium alone [1]. Three quarters of the global deaths from NCDs occur in low to middle income countries [1]. According to United Nations Children’s Fund (UNICEF), 38.2 million children under 5 and more than 340 million children and adolescents aged 5–19 are overweight and obese [2]. Similarly, in South Africa, the number of people affected by NCDs caused by unhealthy diets is increasing. The results of the National Food and Nutrition Security Survey published in 2023 showed that almost half of South Africa’s adult population was overweight and obese [3].

Evidence shows that the increase in the consumption of nutrient poor unhealthy diets is promoted by the activities of the food and beverage industry [4, 5]. This includes the way in which the food and beverage industry package and market foods, and influence public health policy based on their own private interest [4]. As a result, there have been growing calls on governments to adopt a suite of comprehensive measures to address the burden of NCDs. Front of package labelling (FoPL) systems have emerged as an integral component of measures to address the consumption of unhealthy foods that are typically high in sugar, saturated fats and sodium [6].

FoPLs are a policy tool requiring simplified nutritional information to be presented on the front of food packaging with the aim of providing consumers with the necessary support to make healthy food choices. In addition, they aim to encourage product reformulation by food manufacturers [7]. Different types of FoPL systems have been developed and implemented globally and include guideline daily amounts (GDA), traffic light nutrition labelling, summary indicator front of package nutrition labelling and warning labels [7]. Of these systems, mandatory warning labelling has been shown to have greatest efficacy [8, 9]. Studies across several countries have shown the efficacy of FoPL in modifying consumer purchasing habits towards more healthier options [9].

Yet despite the magnitude of the problem of obesity and overweight, and the growing appreciation of the need for consumers to make informed food purchases, FoPL regulations face resistance from the food and beverage industry [10]. The food and beverage industry’s response to regulation often frames the consumption of unhealthy foods as individual choice and focuses on self-regulation [11, 12]. Such a response seeks to remove regulation from the purview of the State and industry responsibility [13]. Moreover, this response ignores factors influencing food choices outside of individual’s influence such as the social, economic and commercial determinants of health [5, 14]. Within lower income countries and those characterised by high inequities, “a broader notion of responsibility” is imperative [13].

In 2023, the move towards regulating the labelling and advertising of food and beverages in South Africa received renewed impetus. The process leading to the publication of regulations R3337 was marred with recalls of preceding regulations. In January 2023, the National Department of Health (NdoH) published the draft regulations R2986 which were later recalled as the incorrect version [15]. In April 2024, draft regulations (R3287) were published and again these were recalled as the version had not been signed by the Minister [15]. A subsequent version, draft regulations R3320 was published and recalled. In May 2023, the NDoH published and invited comments to the latest version of the Draft Regulations on food labelling and advertising (R3337) [16]. The draft regulations are aimed at addressing non-communicable diseases such as diabetes and obesity through among other things introducing a nutrient profile model, restricting misleading advertisements, ensuring that consumers have adequate information to inform food choices, and restricting child-directed marketing of products carrying FoPL.

Several countries such as Brazil, Argentina, Mexico, Uruguay and Chile have adopted regulations on FoPL. The processes towards the adoption of these regulations were fraught with opposition from stakeholders such as the food and beverage industry [17, 18]. Amongst the many strategies employed to oppose regulation was the delegitimisation of the government’s authority to regulate labelling and advertising of food and beverages [19]. Additionally, the food and beverage actors claimed that the regulations requiring FoPL restricted trade more than was necessary, and questioned the scientific basis of the regulations [19]. It is anticipated that the food and beverage industry in South Africa will likely resist the adoption of front of package labelling regulations published by the Department of Health in a similar manner.

Academic research on FoPL in South Africa has mostly focused on evaluating consumer understanding of front of package labelling and the effectiveness of the various formats in promoting healthier food choices [20,21,22,23,24]. Despite a significant body of literature that has explored the effectiveness and consumer perceptions of FoPL, limited research has been undertaken on FoPL regulation as a component of the right to health and on the attendant obligations this places on governments as grounding for the authority to develop regulations. This study contributes a distinctive perspective that highlights a normative dimension by examining the principles entrenched in the right to health that supports FoPL as a policy measure.

As experiences of other countries have shown, the adoption of health policy measures such as FoPL remain contentious resulting in government inaction or delays in the adoption of such policies, and in some instances diluting of the policies. This research highlights that not only is it imperative that policies be grounded in the best available evidence of their effectiveness but that governments be able to substantiate their authority to regulate. The research provides the needed evidence for the government of South Africa to finalise the regulations on FoPL by using a rights framework which is of crucial value given the prevalence of inequities within South Africa. Further, the study’s framing makes it relevant to other countries within the region and globally similarly looking to develop FoPL and that have obligations on the right to health enshrined within their legal frameworks.

The experiences of countries like Brazil, Chile and Mexico that have implemented front of package labelling regulations provide valuable insights and lessons. Based on the lessons from these jurisdictions, this article takes a pre-emptive approach to the anticipated challenges that are aimed at the government’s authority to adopt regulatory measures on front of package labelling. Consequently, the first half of this paper explores the right to health with its normative recognition of FoPL as a measure to promote public health, the articulation of state obligations and the role this can play in the adoption of front of package nutrition labelling. The article situates the regulation of FoPL in South Africa within the right to health discourse by drawing on an analysis of legal frameworks on the right to health at international, regional and national level. The second half of this paper examines the arguments that have been posited by industry in other countries in an attempt to assist advocacy partners to prepare accordingly.

Methods

A doctrinal methodology is used in this research as a structured approach to examining the content and duties of the right to health by analysing legal texts, statutes, case law, and international treaties. This entailed a detailed literature search to systematically evaluate the legal implications, regulations, arguments and policy regarding the nature of the obligation to the right to health. We interpret legal provisions and assess judicial decisions that shape its application to ascertain the scope of the right to health, identify its normative content and the obligations imposed on states and other duty-bearers.

Results

FoPL as a right to health imperative

Right to health under international human rights law

Over the years, there has been increasing recognition of the role of international human rights law in policy formulation to address NCDs [25]. International and regional human rights mechanisms and instruments have built a body of norms and standards that not only recognise FoPL as a policy tool to address NCDs but also elaborate on the obligations of states in relation to FOPL. In its Global Action Plan for the Prevention of Non-communicable Diseases, the World Health Organisation (WHO) recognised FoPL policies as a rights compliant response aimed at addressing diet related NCDs [26].

The right to health recognised in several international treaties particularly plays a central role in anchoring FoPL as a rights compliant policy response. The Universal Declaration on Human Rights in article 25 states that “[e]veryone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”. Additionally, the right is enumerated in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which is considered as the main articulation of the right; [27] article 5 of the of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); [28] article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); [29] and article 24 of the Convention on the Rights of the Child (CRD) [30].

In General Comment 14, the Committee on Economic, Social and Cultural Rights elaborated on the normative content of the right to health by giving interpretative guidance [31]. The Committee stated that the right to health extends to addressing the underlying determinants of health and therefore requires that states address preventable risk factors [31]. In addition, the Committee on the Rights of the Child in General Comment 15 explained that the normative content of the right to health in article 24 incorporates “the child’s biological, social, cultural and economic conditions.” [32] The expansive normative content of the right to health was further emphasised by the then United Nations (UN) Special Rapporteur on the Right to Health, Dainius Puras, in his 2020 statement on the right to health and the adoption of FoPL [33]. The 2020 statement by the UN Special Rapporteur built on the work of the previous Rapporteurs and not only clearly identified FoPL as an effective tool under the right to health for addressing NCDs but also comprehensively outlined state obligations in relation to FoPL [33].

Under international human rights law, the right to health like all other rights imposes three broad obligations on states, namely the obligations to respect, protect and fulfil [31]. The obligation to respect imposes a duty on states to avoid interfering with individuals’ right to enjoyment of the right to health and also respecting the individual’s agency to make informed decisions about their health [34]. The obligation to protect imposes duties on states to ensure that the actions of non-state actors do not violate the enjoyment of the right to health [31]. The obligation to fulfil requires states to give recognition to the right to health through legislative and policy measures that among other things ensure equal access for all to the underlying determinants of health [31]. Moreover, the obligation requires states to “take positive measures that enable and assist individuals and communities to enjoy the right to health.” [31].

Stemming from the growing recognition of the importance of FoPL, international human rights law treaty monitoring bodies and mechanisms have further clarified state obligations in this regard. In a 2014 report to the Human Rights Council, the then Special Rapporteur on the Right to Health, Anand Grover, articulated that the duty to respect does not entail a disengaged approach by states to laws and policies regulating the food and beverage industry [34]. Under the obligation to respect, two specific duties of states are highlighted. States are prohibited from any conduct that amounts to incentivising the consumption of unhealthy food and beverages and adopting any laws that interfere with enjoyment of the right to health [33]. In relation to the obligation to protect, the Special Rapporteur noted that states are required to regulate activities of the food and beverage corporations and ensure that their products provide accurate and easy to understand information [33]. States are called upon to develop regulations that restrict marketing of foods and beverages that contain excessive critical nutrients [33]. Due to the vulnerability of children to NCDs in early life and potential health problems in later life stemming from unhealthy diets, states, through regulations, are required to ensure that food and beverage corporations use labelling that provides an opportunity for parents to make informed food choices [33].

Lastly, on the obligation to fulfil, states have a positive obligation to adopt measures aimed at ensuring realisation of the right to health such as the formulation of comprehensive policies that promote availability of healthy food options [33]. The Special Rapporteur states that FoPL are an essential tool of these policies as they “prevent unhealthy food products from displacing healthy foods from diets and food systems” [35]. Based on the above discussion, international human rights law has adopted a vast normative content interpretation to the right. The interpretation of the right to health goes beyond the provision of medical care to give recognition to underlying determinants of health and inclusion of the public health measures as components of the right to health. In this regard, the obligations of states under the right to health extend to these components of the right.

Traditionally, international law has outlined states as the primary duty bearers towards the realisation of human rights. While international law is yet to clarify the role of non-state actors and their responsibilities towards the realisation of human rights, there is growing recognition that businesses have the responsibility to prevent and address adverse impacts on human rights stemming from their operations. The United Nations Guiding Principles on Business and Human Rights while not binding provide a robust framework for integrating human rights considerations including the right to health into business operations [35].

The three core pillars applicable across all human rights provide guidance on state duties and business responsibilities. Under the protect pillar, States have the duty to protect against human rights abuses by third parties, including businesses [35]. This involves implementing effective policies, legislation, and regulations to prevent and address human rights violations such as those on the right to health [35]. In line with the respect pillar, businesses have a responsibility to respect human rights, meaning they should avoid infringing on the rights of others and address any adverse impacts with which they are involved [35]. This includes conducting human rights due diligence to identify, prevent, mitigate, and account for how they address their impacts on human rights. The framing of these two pillars lends support to the state’s obligation to legislate on FoPL as a component of the right to health and business’ responsibility to adhere to such regulation.

Right to health under African regional human rights law

The African Charter on Human and Peoples’ Rights recognises the right to health and the ensuing state obligations in article 16. The right is framed akin to article 12 of the ICESCR as a right to “enjoy the best attainable state of physical and mental health.” The right is further provided for in complementary instruments such as the African Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on the Rights of Women in Africa, and the Protocol on the Rights of Older Persons in Africa.

The work of the African Commission, as one of the treaty monitoring bodies of the African human rights system has had occasion to deal with the right to health through its communications procedure, resolutions and General Comments [36,37,38]. The majority of these processes have failed to develop an in-depth and nuanced interpretive guidance on the normative content of the right to health. The jurisprudence of the African Commission’s communications procedure however offers the most insight into the extent to which the right to health is formulated as incorporating underlying determinants of health. Several of the Commission’s recommendations on the right to health make the link between the right to health and its underlying determinants. In the communication between the Social and Economic Rights Action Centre (SERAC) and Nigeria, the Commission held that while the right to food is not enumerated in the African Charter, it is by implication contained in the right to health [36]. It further underscored that the right to health requires that states take the necessary measures to realise the right to health of people. In Free Legal Assistance Group v Zaire, the Commission held that the failure to provide safe drinking water, shortage of medicine and electricity amounted to a violation of article 16 [37]. In Sudan Human Rights Organisation and Another v Sudan, the African Commission quoted extensively from the Committee on Economic, Social and Cultural Rights’ General Comment 14 [39]. The Commission concurred that the normative definition of the right to health, includes both health care and healthy conditions and encompasses underlying determinants of health [39]. This framing of the right to health in all three communications signifies an approach to the right that is inclusive of the determinants of health and broader than the narrow enumeration of the provision’s text.

In addition to the core treaties outlining the right to health, the African human rights system has several other commitments that recognise the right to health such as the Pretoria Declaration on Economic, Social and Cultural Rights in Africa of 2004 [40] and the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights [38].

The Principles and Guidelines on the Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights assist states to comply with their obligations and recognise the obligations of states in relation to the right to health as encompassing the respect, protect and fulfil framework [38]. Apart from these general obligations, the specific minimum core obligations of states include the obligations to,

• d. Take measures to prevent, treat and control epidemic and endemic diseases.

• e. Provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them [38].

Over and above outlining these obligations, the guidelines provide normative content into the right to health by stating that it is an “inclusive right that encompasses both health care and the underlying determinants of health.” [38].

The right to health in South Africa

The right to health is enumerated in several Constitutional provisions, with Sect. 27 considered as the principal articulation of the right. Section 27 states that.

• 1. Everyone has the right to have access to—.

  (a) health care services, including reproductive health care;

  (b) sufficient food and water; and.

  (c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

• 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

• 3. No one may be refused emergency medical treatment.

Further, Sect. 28(1)(c) of the Constitution guarantees every child with the right to basic health care services, while Sect. 35(2)(e) provides for adequate medical care for prisoners.

Pieters highlights that the articulation of socio-economic entitlements materialises through administrative processes or through judicial processes [41]. The South African courts therefore have a role in elaborating on the substantive content of the right to health as enshrined in the Constitutional provisions. While several cases brought before the courts on the right to health have provided an opportunity to elaborate on the normative content of the rights, the courts have mostly shied away from defining the substantive content of the right [42]. In this regard, the South African jurisprudence on the normative content of the right to health is very limited.

In British American Tobacco South Africa (Pty) Ltd v Minister of Health, the tobacco company challenged the prohibition on advertising of tobacco products citing that this amounted to a violation of their right to freedom of expression [43]. In its decision, the court accepted the Minister’s reliance on the right to health and the obligations to protect citizens stemming from this right as the basis of limitation of advertisement of tobacco products [43]. The case signifies a broader framing of the right to health not solely related to medical treatment or care but goes beyond to include population health considerations and reduction of health risks. Further, it also signifies recognition of the state’s obligation to adopt legal and regulatory measures that extend beyond the health sector which is one of the hallmarks of public health regulatory measures.

Soobramoney v Minister of Health is one of the earliest and seminal cases on the right to health in South Africa [44]. In this case a patient in the final stages of chronic renal failure sought to enforce provision of dialysis treatment using the right to health. In reaching its decision the court considered the interests of the applicant against the implications that the requested remedy would have on the health requirements of the public [44]. While the court did not articulate the content of “access to health care services”, the court used a “communitarian interpretation” approach to interpret state obligations in relation to the right to health [45]. According to Karrim and Shozi, with the communitarian interpretation, “no individual’s entitlements can ever be conceived of in a way that is adverse to the interests of the broader community” [45]. They posit that the communitarian interpretation adopted in the cases expands the right to health by bringing within its ambit the public health implications of requested measures [45].

With the grounding of FOPL as a component of the right to health clearly established, the next section turns to experiences in other jurisdictions in an attempt to understand the arguments put forward by industry.

Arguments against FoPL in comparative jurisdictions

Several countries have adopted and implemented FoPL as a measure to curb the escalating rates of obesity and overweight and address the burden of disease that these cause. In these countries the processes leading up to the adoption of regulations were drawn out and contentious. The food and beverage industry used various strategies to not only delay the development and implementation of FoPL laws, policies, and regulations but also to weaken the regulations adopted. Such strategies included undermining the government’s role and mandate in developing and enforcing FoPL laws. Additionally, the food and beverage industry appropriated the discourse and language of human rights to oppose regulation and advance their interests in various processes.

Arguments against FoPL in Brazil

In Brazil, the Brazilian Health Regulatory Agency (ANVISA) led the development and implementation of the country’s FoPL regulations [46]. From the outset, the food industry employed tactics that delegitimised ANVISA’s role in the process and legitimised its role as part of the solution to the NCD problem [18, 46]. It highlighted its own economic contribution to the country, its role in safeguarding consumers’ rights to choose and its range of solutions in addressing the NCD epidemic as justification that it was well placed to address the issue and self-regulation [19, 46]. Further, throughout the process they maintained strong relationships with policy makers [19]. The food industry justified its involvement in the process and sought to shift the blame away from the role of unhealthy food products to individual choices [18].

The corporations promoted their preferred nutrition labelling system arguing that it would safeguard people’s right to choose while claiming that the government’s proposed system was not the solution to the NCD epidemic [18]. Instead, the food industry provided alternatives to FoPL including increased physical activity, portion size reduction and a reformulation of food production [18].

As part of delegitimising ANVISA’s role in the process, the food industry also questioned the science that informed ANVISA’s proposed policy and suggested it was not aligned with national regional and international instruments [46]. Throughout the various comment processes, industry questioned ANVISA’s mandate arguing that the proposed system was an unconstitutional and constituted excessive regulation. These tactics resulted in significant delays in the passage of the law.

Industry resistance to regulation continued well after Brazil’s law on FoPL had been passed. The law regulating FoPL provided for a period of two years before it could come into force. An additional year was granted as adjustment for products that were already on the market when the law came into force [47]. On the eve of expiry of the adjustment period, ANVISA published an amendment extending the period to October 2024 based on requests by companies [47]. The Instituto Brasileiro de Defesa do Consumidor (IDEC) brought an application for an injunction against the extension by ANVISA. In granting the injunction the court highlighted that Brazil’s law on FoPL stems from the state’s obligation to implement public policies to promote and protect health and to address information asymmetry by providing accessible information on the nutritional quality of foods [47].

Arguments against FoPL in Mexico

In 2019, Mexico amended its General Health Law and approved changes to introduce FoPL and replace the Guideline Daily Amount (GDA) labels [48]. The lead up to this amendment faced sustained industry interference which used common strategies similar to those used in Brazil and identified as the industry playbook [49]. The arguments proffered by industry included assertions that the labelling requirements were trade restrictive more than was necessary, that they lacked a scientific basis and led to confusion among customers [19]. As White and Barquera note, a significant hurdle was the composition of committees tasked with modifying regulations in Mexico which creates a bias due to the significant presence of industry representation [49].

The implementation of this law faced significant setbacks as industry stakeholders instituted legal proceedings contesting the constitutionality of the provisions mandating FoPL. In appeal proceedings before the Supreme Court of Justice of the Nation, industry raised arguments that the provisions of the General Health Law infringed on its freedom of commerce as labelling sought to inhibit the consumption of prepackaged products, instead of providing information [50]. They asserted that the law is not suitable to achieve the purpose of protecting public health pursued by the legislator. The court held that the appellant had appeared before the court, not as a consumer of the products referred to in the challenged provisions, but as a producer and marketer of pre-packaged food and non-alcoholic beverages [50]. In its consideration of these arguments the court accepted that FoPL was part of the legal framework for prevention and promotion of public health [50]. Further, the court stated that the protection of health is an objective that can legitimately be pursued by the State, as it is a fundamental right recognised in Article 4 of the Constitution [50].

Drawing on its previous jurisprudence, the court highlighted the content of the right to health. It stated that the right to health translates into the attainment of a certain general wellbeing integrated by the physical, mental, emotional and social state of the person [50]. Further, the court held that as a corollary, the right encompasses a state’s duty to attend to the health problems that affect society in general, as well as to establish the necessary mechanisms so that all people have access to health services [50]. This duty includes undertaking actions such as the development of public policies and the identification of the main problems that affect the public’s health.

Arguments against FoPL in Chile

The food industry in Chile also used constitutional arguments to delay the implementation of the FoPL policy. During the stakeholder consultations, the National Advertising Association (NAA), which includes companies like Coca-Cola, Unilever and Nestle argued that the Food Act and its regulations infringed on article 19(12) of the Chilean Constitution, which protects the freedom to express opinions and to inform [51]. However, such an interpretation was too expansive as it did not consider that the advertising restrictions only applied to a subset of products and were only directed at children [51]. Moreover, it did not consider the right to health, which is also protected by the Chilean Constitution. Such a narrow interpretation of the Chilean Constitution was surprising given that the Constitutional Court of Chile had already explicitly acknowledged that freedom of expression is not an absolute right [51]. Rather, it can be and should be subject to legitimate restrictions in a democratic society to protect other rights and values including public health.

In several legal cases, industry brought arguments that alleged violations of their right to property [51]. The basis of these claims was that the prohibition on the use of characters in their trademarks amounted to an illegal deprivation of their intellectual property as their trademarks were not included under the Food law [51]. These arguments were dismissed by the court as it ruled that trademarks fell under the purview of the Food Act [51].

During the public hearings, the Latin American Alliance for Responsible Nutrition (ALANUR) – an association that represents producers of food supplements in Latin America - also made submissions. ALANUR invoked articles 29 and 31 of the Chilean Consumer Protection Act, which permits the dissemination of accurate and truthful product information [51]. By this, ALANUR was anchoring its argument on the scientific accuracy of the nutrition and health claims as expressed through the ingredients list and nutrition declaration of its food products. Similarly, the National Association of Advertisers of Chile (ANDA) argued that the draft law did not recognise the self-regulation mechanism that already existed in the form of the Council on Self-Regulation and Advertising Ethics (CONAR) [51].

Arguments against FoPL in Colombia, Uruguay and Peru

Aside from Brazil, Mexico and Chile, other Latin American countries also faced similar delaying tactics. In Colombia, food industry actors cultivated close relationships with government officials which resulted in some members of trade associations being in decision making positions within the public sector thus increasing the risk of compromising credibility and integrity [52]. According to Ares et al., the Uruguayan Ministry of Public Health led a multisectoral working group consisting of government officials, academia and civil society among others to develop the country’s FoPL policy [17]. Like in Brazil the food industry in Uruguay also opposed the regulation. It promoted its own alternative system arguing that it was more informative and friendlier [17]. It also used economic arguments to delay the process and promoted physical activity as a solution to NCDs [17].

In Peru, industry opposition included legal strategies. They brought lawsuits challenging the authority of the Ministry of Health regarding the regulatory warnings [19]. The court of first instance upheld the arguments in favour of industry [19]. On appeal, the decision of the court of first instance was dismissed as the commission reasoned that the labelling requirements did not constitute illegal bureaucratic barriers [19]. These proceedings brought to light conflict of interest as it emerged that two of the decision makers in the first instance decision had strong industry ties [19]. The National Association of Advertisers (ANDA) in its comments argued that the FoPL law did not comply with the equality test, nor did it comply with the precepts established by the Constitutional Court and even less with article 75 of the Regulations of the Congress of the Republic [53].

Discussion

The draft regulations R3337 were published in May 2023 with a call for submission of public comments. The submission of public comments was closed after an extended deadline on the 21st of July 2023. At the time of writing, a year after the closing date for submissions, comments that were submitted have not yet been made public and neither have there been any further consultations with stakeholders on the comments. In February 2024, it was reported that the NdoH had not started the review process of the submitted comments and stated that “this makes it difficult to determine when the final regulations will be in place” [54].

A human rights framing of FoPL is of paramount importance given the vulnerability of individuals when considered within the context of powerful corporations and a society driven by the interests of these corporations. It provides for a paradigm of accountability not only from the corporations but from state authorities who are bound by obligations to respect, promote and fulfil rights. In addition, a rights-based approach to FoPL has the potential to transcend the challenges resulting from the multisectoral nature of food governance and seemingly competing interests of different stakeholders. As seen from the discussion on other jurisdictions that have adopted laws on FoPL, the food and beverage industry in their strategies have also sought to appropriate the discourse and language of human rights to advance their interests. This was also seen in South Africa when the Health Promotion Levy (HPL), a tax on sugar-sweetened beverages, was introduced – mainly to assist with the rising incidence of NCDs [55]. Industry interference in the process leading up to the introduction of the HPL led to the dilution of the effective tax rate and since it was introduced, there has been further industry interference aimed at preventing any increase in said tax rate or to account for inflation [55].

What is apparent in the contexts of the countries discussed is that generally industry used similar tactics and arguments to oppose the implementation of FoPL regulation and mostly anchored these in constitutional rights and disputing science. In most countries industry had privileged access to government officials beyond the bounds of democratic debate which increased their ability to interfere and influence policy [56]. The experiences of the Latin American countries discussed above demonstrates that it takes a robust, coordinated and comprehensive legal and regulatory framework to back FoPL. A rights-based approach firmly articulates the obligations of states towards individuals and communities that are based on inalienable entitlements and provides strong accountability measures.

The exposition above shows that South Africa has the enabling framework that supports and provides the requisite foundation and mandate for FoPL regulation. South Africa has ratified the major instruments at the international and regional levels that enumerate the right to health. It is therefore bound by the obligations that are concomitant to these instruments. The Constitution in Sect. 39 places an injunction on the state to consider international law including in the interpretation and giving content to rights. While it is accepted that General Comments and other documents from the treaty monitoring bodies are not binding themselves, they provide contemporary interpretative guidance on the normative content on rights. At the international level, FoPL has through these processes been recognised within the right to health and such a framing is possible in South Africa’s context.

Additionally, the approach of the South African courts towards the interpretation of the right to health has shown that it recognises the right to health as more than just encompassing health care services. The approach has shown that the right to health can be reconciled with considerations for public health. Recognition of FoPL can therefore be accommodated and read as part of the Sect. 27 right to health. The framing of FoPL within the right to health further triggers the Sect. 27(2) obligation on the state to take reasonable legislative measures to ensure progressive realisation of the right. While the question of whether the proposed regulations would pass muster on the reasonableness requirement is a separate enquiry, what is important is that an obligation exists to develop a regulatory framework. The obligation of the state is also strengthened by Sect. 7(2) which requires the state to respect, protect, promote and fulfil the rights enumerated in the Bill of Rights.

Conclusion and recommendations

The framing of FoPL as a component and imperative of the right to health provides a framework to counter potential opposition that is likely to be raised by the industry in South Africa. This paper has provided a clear foundation for this framing relying on international, regional and domestic law. Given this foundation as well as the legal obligations that exist in relation to the right to health, government is commended for getting the draft version of R3337 published but is urged to finalise these regulations as soon as possible as a matter of public health and linked to the various constitutional rights articulated throughout this paper.

Once these regulations are finalised, the government, civil society and academia need to be prepared for challenges that will likely be raised by the industry. Apart from challenges related to government’s authority to adopt regulatory measures on front of package labelling, which this article will hopefully assist in addressing, various other challenges may surface, as seen in other countries. Among these challenges are likely to be counterarguments that claim violation of rights related to trade and freedom of speech. Further, it is anticipated that industry arguments will include those questioning the scientific basis of the regulations, propositions for self-regulation and claims of violations of intellectual property. Additionally, legal challenges on these matters are to be expected as another delaying tactic (also seen in other industries such as tobacco). South Africa can learn from the experiences (and judicial precedents) out of Latin American counterparts and prepare accordingly to hopefully mitigate delays.

Lastly, the trend of industry involvement in policymaking processes (both in other jurisdictions as well as in South Africa with the HPL), including access to these processes, which other stakeholders do not have, should be guarded against. This is especially the case given that it interferes with the democratic participatory process and considering that industry interests will often be at the cost of public health considerations.