NCD Innovation Law Gov

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16 journal of law, medicine & ethics

Tacklingthe Global

NCD Crisis:Innovationsin Law andGovernanceBryan Thomas and

Lawrence O. Gostin

To someone holding a hammer, the clich goes,everything looks like a nail. A similar myopiaoten alicts legal minds as they approach

deep-seated problems in global health, as every crisisis approached by rst asking how it might be litigatedaway. In recent years, there has been a growing recog-

nition o the limits o litigation as a tool or advancingequitable access to health indeed o its potential,under some circumstances, to have a positively regres-sive impact.1 This very timely symposium oers us achance to reect more deeply on the matter.

Our aim in this paper is to draw the lens back rom anarrow ocus on litigation, to survey the broader land-scape o global health law and governance. Many othe most pressing health challenges acing the worldtoday are intertwined with the complex dynamics oglobalization, and require policy solutions that seenational and international institutions acting in con-

cert, collaborating with the private sector and civilsociety. The most glaring and urgent case in point which will serve as the ocal point o our discussion concerns the precipitous rise o non-communicablediseases (NCDs) worldwide.

Four NCDs cardiovascular disease, cancer, respi-ratory disease and diabetes account or 63% oglobal deaths annually. The conventional wisdom,which conceives o NCDs as a First World problem,is starkly belied by current data: o the 35 million peo-ple who die annually o NCDs, 80% are in low- andmiddle-income countries. The death toll is projected

to rise by 17% over the next decade, unless meaning-ul steps are taken immediately. Recent meta-analysiso available data shows a quintupling o diabetes inrural areas o developing and middle-income coun-tries.2 With the exception o Sub-Saharan Arica, NCDmortality now exceeds that o communicable, mater-nal, perinatal, and nutritional conditions combined.3Conventional wisdom errs as well in supposing thatrising NCD rates are simply the byproduct o an agingpopulation: more than 50% o its global burden strikesthose under the age o 70.

Beyond the immediate suering and death repre-sented by these numbers, NCDs take a toll on develop-

ment, in rising health care costs and lost productivity.An authoritative study has estimated that the cumu-lative costs o NCDs will be at least $47 trillion rom

Bryan Thomas, S.J.D., is aGlobal Health Law Fellow, ONeillInstitute or National and Global Health Law, GeorgetownUniversity Law Center. Lawrence O. Gostin, J.D., LL.D.,(Hon.), is University Proessor and Faculty Director, ONeill

Institute or National and Global Health Law, GeorgetownUniversity Law Center; Director, World Health Organiza-tion Collaborating Center on Public Health Law and Human

Rights.


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2010 through 2030, with mental illnesses accountingor more than one-third o the cost. This is a low-endestimate. Other economic models calculate the costsat ar higher levels still.4 These costs maniest them-selves in downward spirals o poverty, or individualsand amilies, as NCD suerers nd themselves unable

to work, and aced with ruinous medical expenses.

The moral tragedy lies in the act that this is largelypreventable. The primary risk actors or NCDs are wellknown, and could be reduced or eliminated, given thepolitical and social will through aggressive tobaccocontrol, reduced air pollution, healthier diets, increasedphysical activity, and reduced alcohol consumption.Together, these variables account or 80% o heart dis-ease, stroke, and type 2 diabetes, and 40% o cancers.5

A problem as complex and consequential as NCDsrequires engagement o national governments, theinternational community, and an all-o-societyapproach encompassing all key actors. Below we dis-

cuss innovative governance strategies at the nationaland international levels or addressing the problemo NCDs, spanning across various sectors (e.g., trade,agriculture, transportation, and the environment) andengaging diverse stakeholders (e.g., multilateral orga-nizations, states, civil society, philanthropic groups, andindustry). But beore setting out in search o solutions,it is worth trying to understand the ailings to date.

1. The Quiet Growth of an EpidemicThe past hal-century has seen momentous accom-plishments in global health: the triumph o poliovaccination, the eradication o smallpox, and unan-

ticipated successes in containing the HIV/AIDS epi-demic. On the ace o it, the challenge o NCDs wouldappear comparatively manageable as indicated, therisk actors are well understood, and there are prom-ising strategies available to mitigate them. Why thenhas the problem been allowed to spiral out o control?

Challenges in Social Mobilization around NCDsA key actor has been the lack o social mobilization,to date, pressing or urgent action. Though particu-lar NCDs have heightened prevalence among specic

groups, there is no cohesive, sel-identiying group lob-bying or action on all NCDs. Looking back at socialmobilization against Big Tobacco, or example, onends that the movement was driven by a core groupo ardent volunteers oten relatives o the victims otobacco-related illness. Political momentum around

HIV/AIDS ollowed a similar dynamic. Rather thanuniy around a comprehensive strategy onNCDs, social movements have oten splin-tered, raising consciousness about particu-lar diseases.

The multiactorial causation o NCDsposes urther challenges not only ormedicine and health policy, but also orsocial mobilization. As explained below,reducing the burden o NCDs will involveexperimentation with various comple-mentary strategies, across multiple sec-

tors. Whereas HIV/AIDS activists can rally arounddemands or access to anti-retroviral medicines, thepolicy demands o the anti-NCD movement will nott neatly on a placard.

One might hope that litigation would serve as acatalyst or altering social movements. Such was thecase, or example, with the anti-tobacco movement inthe U.S., as litigation led to the disclosure o damningindustry documents, prompting public outrage andswit government action. A similar trajectory seemsunlikely in the case o NCDs, in part because no singleindustry is to blame the problems are maniold, as

are the solutions. Typically, where NCDs give rise tolitigation, claimants are seeking access to expensivemedical therapies, such as cancer treatments. Rare arethe cases where litigation is used to demand imple-mentation o broad preventative strategies thoughthere have been encouraging developments aroundthe issue o second-hand tobacco smoke.6

Plainly, the ocus in addressing NCDs must be largelyon prevention, as opposed to pharmacomedical treat-ment ater the act. But prevention strategies aimedat improved health or the next generation may lackthe political urgency o treatment strategies that saveidentiable lives today. Many o the strategies outlined

below will pay out their dividends over decades. Fromthe vantage point o today, the beneciaries are largelystatistical people e.g., the cohort o adults enteringmiddle age, decades rom now, experiencing reducedrates o adult-onset diabetes, thanks in part to publichealth interventions on diet and physical activity.

Moreover, prevention strategies oten have a whi opaternalism, and this can be a distinct political liabil-ity. New York Citys Mayor recently unveiled plans tolimit the serving size o sugary sot dinks sold in movietheatres and convenience stores, immediately earning

A problem as complex and consequentialas NCDs requires engagement onational governments, the internationalcommunity, and an all-o-society approachencompassing all key actors.


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himsel the nickname Nanny Bloomberg. Similarly,the anti-tobacco movement stalled or decades, as itwas believed that the decision to smoke by thenknown to be a lie or death decision was a mattero personal choice, not o public concern. It was onlywhen the dangers o second-hand smoke came to light

that the social movement gained momentum.We mention these concerns about paternalism

only to signal the drag they may have on social move-ments and, in turn, government action; in substancethe concern is, quite rankly, oten overblown. Likesecond-hand smoke, NCDs have an enormous impacton innocent third parties among other things, by

using up scarce health care resources, increasingly indeveloping countries still burdened with deadly com-municable diseases (the so-called double-burden).Just as there is a valid public interest in assuring thatcitizens are educated and thereby able to contribute to

the common good, so too there is a valid public inter-est in the prevention o chronic maladies.Moreover, the anti-paternalism objection rests on

a perverse assumption namely, that the status quo,with its rising NCD rates, is itsel the product o indi-vidual choices, reely made.7 The reality o course isthat myriad collective decisions made by govern-ments and private interests shape the menu ooptions available to individuals, determining the priceand availability o nutritious oods, the accessibility oplaces to exercise, ways to commute to and rom work,and so on. There is no avoiding government inu-ence over risk behaviors. The question is only whether

that inuence will advance or detract rom the abil-ity to lead a healthy liestyle. Calls or a laissez-aireapproach are especially galling, given it is the poorwho will bear the brunt o government inaction asthey may lack the nancial means and leisure timeneeded to prepare healthy oods, exercise, have regu-lar checkups, and so on.

Misunderstanding among Key Decision MakersThe lack o social mobilization has allowed variousmyths about NCDs to go unchallenged in the halls o

power worldwide. We mentioned some o these mythsalready: e.g., the view that NCDs aect only the elderlyand the auent; that they are the product o personalchoice and thereore beyond the proper reach o gov-ernment; and the atalistic assumption that the prob-lem is insolubly complex.

Moreover, even when NCDs are recognized as aproblem, they are oten placed below inectious dis-eases in decision makers list o priorities. At the levelo global institutions, this is partly a reection o his-torical roles: the World Health Organization (WHO),and its institutional precursors in the late 19th andearly 20th centuries, were primarily ocused on the

containment o inectious diseases. Having special-ized in inectious diseases or decades, WHO hasbeen reticent in pressing an expanded agenda onthe broader determinants o health. I the aim is topromote long and healthy lives, WHOs prioritiza-

tion is quite misguided, as there is a direct interplaybetween inectious diseases and NCDs. Many inec-tious agents are known to cause cancer (e.g., HPVand cervical cancer); many o the risk actors orNCDs also exacerbate inectious diseases (e.g., smok-ing increases the risk o death rom tuberculosis);and inectious disease therapies increase the risk oNCDs (e.g., antiretroviral regimens can increase therisk o heart disease in HIV patients). A recent studyound that 1 in 6cancers worldwide are caused bytreatable or preventable inections. Inection-relatedcancers are much more prevalent in the developingworld than the developed (23% o cancers versus 7%,

respectively) owing to lack o vaccination and anti-microbial treatments, etc.8

Lastly, decision makers oten assume that their pur-suit o economic development will bring improvedhealth as a byproduct. That assumption is tenuous inthe case o NCDs, which may in act be exacerbated bydevelopment, as urbanization leads to increased reli-ance on cars, less green space or recreation, and risingincomes lead to increased consumption o tobacco,alcohol, and calorie laden oods. Globalization o tradeand investment a avored strategy or economic

The lack o social mobilization has allowed various myths about NCDsto go unchallenged in the halls o power worldwide. We mentioned some

o these myths already: e.g., the view that NCDs aect only the elderly andthe auent; that they are the product o personal choice and thereorebeyond the proper reach o government; and the atalistic assumption

that the problem is insolubly complex.


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development acilitates the supply and marketingo unhealthy consumer goods.

The situation is dire but not hopeless. Given thepolitical will, there is much that national governmentscan do to stem the tide on NCDs. As we will explorein section 2, the options range rom sot interventions

such as improved ood labeling to more direct ormso regulation (e.g., banning trans ats). Yet eortsto respond to this crisis are doomed to ail withoutinternational cooperation. Many o the risk actorsassociated with NCDs are, in a very real sense, com-municable. They are communicated rom wealthynations to developing nations, acilitated by globaltrade agreements, through the marketing and exporto cigarettes, alcohol, and unhealthy processed oods.Billions o people worldwide have seen their physical,cultural, and nutritional landscape drastically changedin recent decades, by orces o globalization that lie

mostly beyond their control. In section 3, we explorehow global governance strategies might respond as aorce or health.

Though we will ocus largely on public institu-tions, one must recognize the essential role o theprivate sector in the search or sustainable solutionsto the NCD epidemic. While the anti-tobacco move-ment rightly demands that Big Tobacco be deniedany role in public health initiatives, the ood indus-try will need to be engaged, on an ongoing basis,in the battle against NCDs. This need or ongoingood industry engagement, as part o lasting solu-

tion, remains a daunting challenge: experience withtobacco suggests that entrenched industries will ghtreorms tooth-and-nail. In section 4, we explore thepromise and perils o multisectoral solutions to theNCD crisis.

2. Domestic Strategies for Addressing NCDsNational governments and their counterparts atthe state and local level will o necessity be theprimary actors in the battle against NCDs, as theyalone possess the sovereign authority to implementneeded legal and regulatory measures. Indeed, underinternational human rights law, domestic govern-

ments are obligatedto promote the highest attainablestandard o health among their population, withinthe resources at their disposal. What does this obliga-tion require, concretely, by way o action on NCDs?There is no one-size-ts-all governance solution, asinterventions must be tailored to the particular needso a population and optimized within resource con-straints. In what ollows, though, we survey somekey interventions, ranging rom simple surveillanceo NCD rates to more direct, command and controlregulation.9

Monitoring Rates o NCDsWhile inectious disease surveillance is well accepted,surveillance o chronic diseases remains, in some cir-cles, controversial.10 For example, New York city hasdrawn controversy with its diabetes surveillance pro-gram, which includes mandatory laboratory report-

ing o glycated hemoglobin, directives or physiciansin managing patients with poor glycemic control, andadvice to patients about diabetes management. Civillibertarians and some physicians vehemently opposesurveillance, arguing it intereres with patient privacy,clinical reedom, and the doctor-patient relationship.Patients can opt out o receiving health departmentadvice, but not the reporting requirement. How-ever, opting out is a complex procedure, which itselrequires limited inormation disclosure.11

Monitoring o NCD rates is essential i governmentsare to be held accountable or health outcomes among

their populations. A purely opt-in scheme or sur-veillance would run the risk o selection bias: i, orexample, a given minority group is prone to opt-out,their rising NCD rates may go unnoticed. Moreover,as indicated, there is good reason to question the tra-ditional outlook seemingly at play in opposition tosurveillance programs which sees inectious dis-eases as a proper concern o public health ofcials, butnon-communicable diseases as alling within the priv-ity o patient/doctor relationships.

Full Disclosure o the Health Eects

o Consumer GoodsConsumers oten make poor product choices becausethey lack clear, comprehensible inormation. Considerthe bewildering way in which much ood is marketed:low at can mask or high sugar and sodium, lowsodium can mask or high calorie; zero trans atscan mask or high saturated ats; and so orth.

To remedy this obuscation, governments can com-pel industry to disclose the truth about their products,by requiring clearer ood package labeling, healthwarnings on cigarettes and alcohol, and nutritionalinormation on restaurant menus. The United King-dom Food Standards Agency developed a voluntary

system that is visible and simple to ollow. Known as atrafc light system, companies must label oods withprominent green, yellow, or red lights or each o themajor nutritional groups whole grains, saturatedat, sodium, and sugar.12 Not only does this clearlyinorm the lay public, but it also provides an incentiveor ood manuacturers to develop healthier products,to avoid the stigma o our prominent red lights ontheir packaging. Uniorm labeling across brands mayin turn promote healthy competition in the mostliteral sense. Happily, clear and comprehensible ood


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labeling is entirely consonant with concerns or per-sonal autonomy, as it merely enables individuals tomake inormed choices.

Regulation o AdvertisementsMany governments have already limited advertising

o cigarettes and alcoholic beverages, to orbid the tar-geting o children and adolescents (though in virtuallyevery country, more could be done, or example, onplain packaging o cigarettes). The notable exceptionis the ood industry, which alone spends more than $11billion annually to market its products in the UnitedStates alone. The bulk o industry spending is to pro-mote unhealthy oods, such as sweetened beverages,sugary cereals, candy, and highly processed oods withadded sugar, ats, and sodium.13 Advertising is ubiqui-tous, spanning television, radio, and the print media tothe Internet and advergames, where ood is used as

a lure in un video games.14 The industry has adoptedineectual voluntary sel-regulatory measures.15

In 1980, Qubec, Canada banned ast ood adver-tisements targeting children, which has reducedannual spending on ast oods by an estimated $88million. The province now boasts the countrys low-est childhood obesity rate. Moreover, healthier eatinghabits, once ingrained in childhood, are carried intoadult lie.16

Regulating the content o advertising is conten-tious, potentially implicating constitutional rights tocommercial ree speech. Certainly the public supports

regulation o misleading messages directed towardyoung people, yet there is bound to be disagreementover what messages are misleading versus simplyalluring. Despite these concerns, regulation o adver-tising to children may be politically acceptable giventhe potential or manipulation o vulnerable youthand the states responsibility to protect minors.

Setting Incentives and DisincentivesGovernments main method o disincentivizing thepurchase o certain products is to levy taxes on them.So-called at-taxes have been proposed as a proactiveresponse to a ood industry and consumer culture that

increasingly promotes unhealthy oods as the cheap-est, tastiest, and most readily accessible option. 17The World Health Organization has endorsed thisstrategy.18

As expected, critics allege that at taxes are pater-nalistic, and also regressive, as poor people are theprimary consumers o high-at oods. Again, it isinstructive to contrast this to the regulation o ciga-rettes, where there is greater support or state inter-vention. One rarely hears it argued that cigarette taxesare paternalistic not in serious debate, at least

as it is widely acknowledged that they serve merelyto internalize the ull social costs o smoking. On theregressive charge, notice that cigarette taxes are otenpraised as having a progressive health impact, pre-cisely because the deterrent eect becomes strongeras one moves down the income scale.19 In the case o

cigarettes there are valid concerns that heavy taxationmay lead to smuggling and black market sales, partic-ularly in the developing world;20 the Framework Con-vention on Tobacco Control, discussed below, is meantpartly to address this problem.21

Unlike cigarettes or which cessation is the bestoption government can take steps to incentivize theproduction, sale and consumption o healthier oods,or example, by subsidizing resh ruits and vegetablesat the level o the arm or retailer. (In some leadingood producing states, a rst step would be to ceasethe subsidization o unhealthy oods, such as high

ructose corn syrup or cane sugar).Furthermore, government, employers, and others

could oer incentives or physical activity and exer-cise: subsidies or taking public transportation, join-ing tness clubs, and participating in organized sport-ing activities. Tax policy can be used, or example, toprovide individuals a exible spending account otax-exempt unds or physical activities or exercise,such as riding a bicycle to work or school.

Direct RegulationA more aggressive, and controversial, approach to

regulation would consist o an outright ban on oodsor ingredients deemed to be especially injurious tohealth. A growing body o scientic evidence linkstrans atty acids to coronary heart disease. The Insti-tute o Medicine concluded that trans ats provideno benet to human health, and that there is no saelevel otrans at consumption.22 In 2003, Denmarkbecame the rst country to set an upper limit on thepercentage o industrially produced trans at in oods.New York City later restricted the sale o productscontaining articial trans at in all restaurants. As oJuly 1, 2007, restaurants were prohibited rom pre-paring recipes that contain more than 0.5 g o trans

at per serving.23 The Food and Drug Administration,moreover, requires trans at levels to appear on oodlabels. Notice, however, that even 0.5 g otrans at perserving is unhealthy, especially i a consumer is eatingmultiple servings during the course o a day. Recentstudies have shown the New York ban to be a clearsuccess restaurants have lowered trans at levelswithout raising prices or substituting a commensuraterise in saturated ats.24

Incremental orms o direct regulation have beenproposed as end game strategies in the war against


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tobacco. Some propose gradually reducing the nico-tine content o cigarettes, eventually dropping belowthe threshold levels o addiction.25 Others propose asinking lid on the supply o cigarettes available orcommercial sale,26 or grandathering schemes that pegthe age o sale to a calendar year e.g., permanently

prohibiting the sale o cigarettes to anyone born aterJanuary 1, 2000.27

Perormance-Based RegulationThere is a concern that direct command and controlmethods o regulation may have unoreseen negative

consequences; the approach puts great stock in gov-ernments ability to engineer healthy liestyles. Analternative approach, which gets around this problem,is or government to set a measurable outcome, whichcompanies must reach within a certain period o time,or ace penalty.28 It is then let to relevant ood com-

panies to gure out a way to meet these targets at paino penalty i they ail. This approach harnesses theprivate sectors capacity or innovation as an engine opublic health.

Optimize the Built Environment or HealthIndividual choices are not made in isolation, but reectin important ways the environment in which peoplelive. The built environment may acilitate or inhibit ahealthy liestyle. Governments job is to make healththe easier, or deault, choice rather than, at present,the much more difcult choice. Government can workto help people stay healthy by enacting zoning and

land-use laws that create healthier places or its resi-dents to live. By designing green spaces, playgrounds,sidewalks, and paths or easy walking, hiking, and bik-ing, local government can do a great deal to improvethe health o the population.

Government can also take steps to limit or dis-courage motor vehicles in city centers, to encouragepedestrian trafc and make the air cleaner or walkersand bicyclists. Thus, supporting mass transit systemsand ensuring sae routes or people to walk to school,work, and shops are an essential part o a healthy

community. In this way, public health goals are closelyaligned with goals o the environmental movement.Finally, governments could require that planningor new developments include health impact assess-ments. Consultation with communities and publichealth evaluations could be required as a pre-condi-

tion o initiating signicant building projects.This survey o regulatory options available to

domestic governments is necessarily cursory. Indi-vidual countries and communities will need to chooseamong these and other options, developing strategiesthat address their needs. What we mean to impress

is simply the breadth o options available to govern-ments hopeully giving readers some sense, byimplication, o the limited role or courts.

We next explore how governance structures at theinternational level could support national govern-ments in their eorts to combat NCDs. The ques-

tion links to an innovative global civil society projectrecently launched, pressing or a Framework Conven-tion on Global Health.

3. Marshaling a Global ResponseFor a time, rising NCD rates were met with apathyrom the global community. There is no global undor chronic diseases, no major oundation champion-ing the cause, little mention by the G8 or G20, andthe issue is not even targeted in the UNs Millen-nium Development Goals. As discussed, the preemi-nent global health institution, WHO, has historicallyocused its attention and resources on inectious dis-

eases though that is changing, as we will explain.The complexity o NCDs presents a challenge in

orging a unied and comprehensive global response.NCDs comprise a basket o various diseases, implicat-ing risk actors that span multiple sectors o econo-mies and societies. Furthermore, viable solutions willnecessarily implicate not only public actors but alsoa host o private actors, including private companies,civil society, the media, and academia. We begin byexplaining why a global response is needed, notwith-standing these ormidable challenges.

Individual choices are not made in isolation, but reect in important waysthe environment in which people live. The built environment may acilitateor inhibit a healthy liestyle. Governments job is to make health the easier,

or deault, choice rather than, at present, the much more difcult choice.Government can work to help people stay healthy by enacting zoning and

land-use laws that create healthier places or its residents to live.


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end o October 2012 to establish urther targets and amonitoring ramework.

We emphasize that these are all voluntary, non-bindingtargets a eature which has been the ocuso many critiques o the Declaration. UN Special Rap-porteur on the Right to Food, Olivier De Schutter, or

example, promptly complained o a missed oppor-tunity or rm action to end arm subsidies or non-nutritious oods, or to curtail the marketing o junkood to children worldwide.41 Similar complaints haveissued rom advocacy groups working on other NCDrisk actors. What was conspicuously absent romthe Political Declaration were eective measures orglobal governance either sot or hard with thepower to steer global health action on NCDs.

It is unortunate that this important groundworkor global action on NCDs was laid during a severeeconomic downturn. Though the Declaration rec-

ognizes the need or resources, it makes no commit-ments to provide them instead calling on MemberStates to investigate unding options, within theirbudget allocations, and through innovating nancingmechanisms. The Declaration speaks as well o theimportance o North-South cooperation, but takes nosteps to set that in motion.

Ambitious, long-term targets and catchy sloganscan play an important role in consciousness raising the campaign to eradicate smallpox worked to a targetdate, and more recently the 3 by 5 slogan (three mil-lion people on antiretroviral therapy by 2005) was an

inspiring benchmark or the HIV/AIDS movement.However, the 25 by 25 target is ambitious even bycomparison to those loty campaigns, and there is noagreement on intermediary benchmarks.

The challenge grows more daunting by the day, askey risk actors o smoking, alcohol, unhealthy diet,and insufcient physical exercise are on the rise, as isthe primary risk actor aging. Moreover, there arelimits on what can be achieved through preventativemeasures in the space o 13 years. A good portion othe target 25% reduction will need to be achievedthrough treatment rather than prevention requir-ing dramatic increases in unding, ull engagement

o pharmaceutical companies, low cost and eectivediagnostics, and buy-in rom ministries o nance,trade, customs, and transportations. In contrast, curb-ing the NCD pandemic in the long run will requiredetermined action to prevent the primary behavioralrisk actors.

The Political Declaration will hopeully not be thelast global pronouncement on the matter. Other ambi-tious ideas have been tabled or global health gover-nance, some building on the ramework conventionmodel employed or tobacco control. For example,

there is a growing campaign aoot or a FrameworkConvention on Global Health (FCGH), building onthe precedent o the historic FCTC. The Joint Actionand Learning Initiative on National and GlobalResponsibilities or Health (www.jalihealth.org) isleading this campaign, which aims to broadly reshape

global governance or health establishing bindingnational and international commitments on health,addressing many o the key risk actors or NCDs. 42Borrowing rom the FCTC or FCGH, advocates havecalled or a ramework convention on alcohol and onobesity itsel.

Challenges to a Global ResponseThe WHO, unlike any other global-health body, cancreate legally binding conventions, requiring a two-thirds majority vote by member states. However, theWHO has generally preerred to issue non-binding

recommendations, guidelines, and standards. Lack opolitical will has oten stood in the way. An example isthe attempt to adopt a binding regulation on the mar-keting o breast-milk substitutes, dating back to the1970s, which ailed thanks to opposition rom somedeveloped countries.43

The WHOs reluctance to use hard legal instrumentshas been lamented by some.44 Others argue that thedirect costs associated with drating, ratication, andenorcement o international laws together withdisadvantages o prioritizing process over outcomes,consensus over diversity, generality over specicity,

states over non-state actors, and lawyers over healthresearchers make the sot law approach a betteroption.45

Most importantly, or any approach that is adoptedthere must be mechanisms to ensure compliance. Thisis true or both hard and sot law. The risks here areevidenced with the FCTC: despite this legally bindinginstrument, tobacco use is increasing in many poorcountries, and remains the second-largest cause odisease risk in middle-income countries.46

3. Multisectoral Approaches:Their Promise and Pitfalls

Our discussion to this point has advocated an all-o-government approach, encompassing a range o pol-icy initiatives that all outside the health portolio astraditionally conceived implicating trade, agricul-ture, urban planning, schools, the environment, etc.We then explained that the support and collaborationo global institutions was needed, to ensure that healthis prioritized amidst global orces pursuing trade andeconomic development. In this nal section, we lookbeyond the role o national and international publicinstitutions, to explore the role o private companies,


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civil society, the media, and academia, in an all-o-society eort to reverse NCD rates.

Engaging Private IndustryOne can scarcely overstate the power that multination-als wield over the risk actors associated with NCDs,

rom the labeling and nutritional content o oods ongrocery store shelves and in restaurants, to the globalmarketing o sugary drinks, alcoholic beverages, andcigarettes. I the pandemic is to be dealt with, privateindustry must playsome role. It can be compellinglyargued that the tobacco industry has no role to play

as a partner in public health, as that industry will bestcontribute to public health by disappearing. The samecannot be said, though, o the ood industry nor,realistically, o the alcohol industry.

The question is not so much whetherprivate indus-try will be engaged, but how. And public health agen-

cies both domestic and global must adopt clearconict o interest rules that prevent industry romhaving preerential access to policymaking or undueinuence. Various arrangements are possible, rangingrom command-and-control approaches to public/private partnerships, through to voluntary sel-regu-lation. No prescription can be issued in the abstract; adynamic approach is needed, driven by the pursuit othe publics health. We oer some pathways or con-structive industry engagement.

There are well-known risks involved in attemptingto regulate well-entrenched private industries. Amongthese is the risk o regulatory capture, whereby public

agencies all under the sway o industries under theircharge. The theory here, roughly stated, is that sub-jects o regulation have a high-stakes interest in inu-encing their regulators, and will ocus their energiesand resources to sway policy in a avorable direction.Even i raw sel-interest does not hold sway, regulatorsand industry work so closely with one another thatthey can get too cozy and comortable. On the ace oit, the risk o regulatory capture seems especially acutein eorts to address NCD risk actors. The ood, alco-hol, and cigarette industries are dominated by huge

multinationals, with deep pockets and demonstratedlobbying savvy. As weve seen, the counterbalanc-ing orces o social mobilization on this issue have, todate, been ragmented and ineectual due in part toinherent eatures o the NCD crisis (e.g., the diversityand complexity o ailments captured by this umbrella

term).Problems akin to regulatory capture can arise

whether private industry is regulated under a com-mand-and-control model, or instead engaged in pub-lic-private partnerships. As others have noted, the ot-touted model o public-private partnerships is poorly

dened and multiply ambiguous. In someinstances, the ostensible partners aretied only nancially, with the private sec-tor unding government initiatives (orvice versa). In other cases, partnershipsmerely provide a orum or discussion

between public and private sectors, withno money changing hands, and no sharedgovernance responsibilities. In othercases still, partnerships involve more or-mal governance structures, with votingboards drawn rom public and private

sectors.47 And these partnerships can delay or evenblock what may be truly needed, which is direct reg-ulation. One cannot assume that these partnershipsare structured to serve the public interest; they mustbe careully scrutinized to guard against conicts ointerest.

There will oten be no path o enlightened sel-interest leading major multinationals to voluntarilysell healthier goods. The reality, as one author putsit, is that good oods are bad commodities with lowprot margins while bad oods are good commodi-ties.48 The public health community must brace itselor a long, uphill battle on this issue, and be very waryo win-win solutions touted by industry. Ultimately,it must become unacceptable or industry to aggres-sively market unhealthy products, enticing consum-ers to eat ood or drink beverages that are distinctlyunhealthy.

Civil Society EngagementIn its political dynamics, the issue o NCDs has aoreboding similarity to climate change: both involveurgent global challenges, requiring major investmentso nancial resources and political capital, whose divi-dends will pay out long ater the next election cycle.Under these circumstances there is a strong temp-tation or those in positions o power in govern-ment and private industry to leave the problem oranother day. It thereore alls to civil society to be vocaland relentless on this issue, pressing governments to

There will oten be no path o enlightenedsel-interest leading major multinationals to

voluntarily sell healthier goods. The reality, as

one author puts it, is that good oods are badcommodities with low prot margins whilebad oods are good commodities.


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set out detailed strategies, with near-term bench-marks and monitoring requirements.

Here too, one must demand transparency rom civilsociety groups, and be watchul or potential conictso interest. As with every dirty trick in health politics,this one has been perormed par excellence by the

tobacco industry, which or decades disseminatedmisinormation about the health risks and addictive-ness o cigarettes, through ront groups masqueradingas independent think tanks.49

Broader consciousness-raising about NCDs will bevital as well pitched at the general public qua citi-zens and consumers. In the current climate o world-wide government austerity, it will no doubt be arguedthat the problem is too costly to address now; this atti-tude dovetails ideologically with the view that NCDprevention is a matter o personal rather than publicresponsibility. Public initiatives to address the tobacco

and HIV/AIDS epidemics were stalled or a time, withenormous human costs, thanks to misguided beliesalong these same lines. The point needs to be drivenhome relentlessly that government can respond eec-tively to the NCD crisis, and that ailure to do so willbe many times more costly.

Having secured a place or NCDs on the publicagenda, civil society will then have an ongoing roleto play, lending its expertise to the development andselection o evidence-based policy responses.50 As thesurvey o policy options above suggests, expert inputrom very diverse sources will be required (e.g., experts

in urban planning, agriculture policy, and inormationsciences).Through all o this, global cooperation among civil

society groups will be essential. The coming years willhopeully see experimentation with novel strategies toreverse NCD rates, oering an opportunity or coun-tries to learn rom one anothers successes and ail-ures. Civil society groups will have an important roleto play in this learning process, as impartial observerscommitted to advancing public health.

Why the Crushing and Unequal Burdenof NCDs Is Unacceptable

It seems paradoxical, on its ace: the major healthchallenges o our time desperately call out or nationaland global action on an unprecedented scale; yet thetrend in many countries is toward litigation o healthrights, oten on an individualized basis. On reec-tion, though, it appears that these two trends may bemutually supporting. Our ailure to take meaningul,collective action to reverse rising NCD rates has lethealth systems worldwide to cope with the burden. Asthose systems reach their resource capacity, there is nochoice but to ration care. The end result: worldwide,

vast numbers o very sick people coping with chronicillnesses, scrabbling or expensive treatments; thosewho can appeal to the courts as a last resort.

The NCD crisis is largely o our own making reecting individual and societal choices and canbe reversed only through concerted national and

global eort. The past century has seen inspiringachievements in public health, though perhaps nonehas required such a broad, multi-sectoral response asreversing the dominant trend o ever increasing obe-sity, sedentary liestyles, and sel-destructive behaviorthrough tobacco use and excessive consumption oalcoholic beverages.

For those who argue that all this suering and eco-nomic toll is only a matter o personal choice, amilyresponsibility, and the ree market, we insist that thestatus quo is simply unacceptable. Make health theeasier, deault, option, rather than being agonizingly

diicult.51 Reveal the suering o people, amilies,and whole societies caused by the crushing burden oNCDs. And reuse to accept the unconscionable healthinequalities between the rich and poor both withinand among nations.

AcknowledgementsThe authors would like to thank Anna Garsia, Dina Jerebitski,Thandiwe Lyle and Corey Kestenberg or their assistance in thepreparation o this article. This article reects ideas in ProessorGostins orthcoming book, Global Health Law: International Law,Global Institutions, and World Health (Harvard University Press,orthcoming 2013).

Reerences1. O. L. M. Ferraz, Harming the Poor Through Social Rights

Litigation: Lessons rom Brazil, Texas Law Review 89, no. 7(2011): 1643-1668; C. M. Flood and B. Chen, Charter Rights& Health Care Funding: A Typology o Canadian Health RightsLitigation, Annals o Health Law 19, no. 3 (2010): 479-526.There are broader, more longstanding critiques o rights asa mechanism or progressive political change; see generally,

Wendy Brown & Janet Halley, eds.,Let Legalism/Let Critique(Durham: Duke University Press, 2002).

2. C. K. Wang et al., Rural Diabetes Prevalence Quintuples OverTwenty-Five Years in Low- and Middle-Income Countries: ASystematic Review and Meta-Analysis, Diabetes Research andClinical Practice 96, no. 3 (2012): 271-285.

3. World Health Organization, Global Status Report on Noncom-municable Diseases 2010 (Geneva: WHO, 2011).

4. D. E. Bloom et al., The Global Economic Burden o Non-Com-municable Diseases, A Report by the World Economic Forumand the Harvard School o Public Health (Geneva: World Eco-nomic Forum, 2011): at 27, 29.

5. World Health Organization, Preventing Chronic Diseases: AVital Investment, WHO GLOBAL REPORT (Geneva: WHO,2005).

6. See O. Cabrera and J. Carballo in this issue.7. L. O. Gostin and K. G. Gostin, A Broader Liberty: JS Mill,

Paternalism, and the Publics Health, Public Health 123, no. 3(2009): 214-222.

8. C. de Martel et al., Global Burden o Cancers Attributable toInections in 2008: A Review and Synthetic Analysis, LancetOncology 13, no. 6 (2012): 607-615.


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48. M. Caraher and G. Cowburn, Taxing Food: Implications orPublic Health Nutrition, Public Health Nutrition 8, no. 8(2005): 1242-1249.

49. A. M. Brandt, The Cigarette Century: The Rise, Fall, andDeadly Persistence o the Product that Defned America (NewYork: Basic Books, 2007): at chapter 6.

50. C. Blouin, Global Responses to Chronic Diseases: What Les-sons Can Political Science Oer, Administrative Sciences 2, no.1 (2012): 120-134.

51. R. H. Thaler and C. R. Sunstein, Nudge (New Haven: Yale Uni-versity Press, 2008).

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