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Implementing the WHO Recommendations whilst Avoiding Real, Perceived or Potential Conflicts of Interest

Published online by Cambridge University Press:  21 July 2017

Amandine GARDE ,
Bill JEFFERY  and
Neville RIGBY
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European Journal of Risk Regulation , Volume 8 , Special Issue 2: Special Issue on the Implementation in Europe of the WHO Recommendations on Food Marketing to Children , June 2017 , pp. 237 - 250
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© Cambridge University Press 

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Footnotes

*

University of Liverpool, agarde@liverpool.ac.uk.

**

Centre for Health Science and Law, billjeffery@healthscienceandlaw.ca.

***

International Obesity Forum, nevillerigby@aol.com.

References

1 Rodwin, M, Medicine, Money and Morals: Physicians’ Conflicts of Interest (Oxford University Press, 1993)CrossRefGoogle Scholar.

2 Moore, D et al., “Conflicts of interest and the case of auditor independence: Moral seduction and strategic issue cycling” (2006) 31 Academy of Management Review 10, 11 CrossRefGoogle Scholar. On the notion of conflicts of interest, see Y Mény (ed), Les Conflits d’Intérêts, Pouvoirs 147 (2013) and J Moret-Bailly, “Définir les Conflits d’Intérêts” (2011) 187(16) Recueil Dalloz 1100.

3 On the position of WHO on the question of conflicts of interest, see Judith Richter’s insightful contributions, and in particular “Editorial: WHO Reform and Public Interest Safeguards: An Historical Overview” (2012) 6 Social Medicine 141 and “Time to turn the tide: WHO’s engagement with non-state actors and the politics of stakeholder governance and conflicts of interest” (2014) 348 British Medical Journal g3351.

4 World Health Organization. Global Health Risks: Mortality and burden of disease attributable to selected major risks (WHO, 2009)Google Scholar, especially pp. 10, 11 and 17, available at www.who.int/healthinfo/global_burden_disease/GlobalHealthRisks_report_full.pdf. See also the Global Burden of Disease Report available at vizhub.healthdata.org/irank/arrow.php.

5 Gilmore, A et al, “Public health, corporations and the New Responsibility Deal: promoting partnerships with vectors of disease?” (2011) 33 Journal of Public Health 2 CrossRefGoogle ScholarPubMed; Brady, M and Rundall, P, “Governments should govern, and corporations should follow the rules” (2011) 39 United Nations Standing Committee on Nutrition News 51, 51 Google Scholar; Hastings, G and Angus, K, “When is social marketing not social marketing?” (2011) 1 Journal of Social Marketing 45 CrossRefGoogle Scholar, 51.

6 Gilmore, A et al., “Public health, corporations and the New Responsibility Deal: promoting partnerships with vectors of disease?” (2011) 33 Journal of Public Health 2 CrossRefGoogle ScholarPubMed.

7 Reinhardt, Forest L and Stavins, Robert N, “Corporate social responsibility, business strategy, and the environment” (2010) 26(2) Oxford Review of Economic Policy 164 CrossRefGoogle Scholar, 178.

8 Art. 37 states: “In the performance of their duties the Director-General and the staff shall not seek or receive instructions from any government or from any authority external to the Organization. They shall refrain from any action which might reflect on their position as international officers. Each Member of the Organization on its part undertakes to respect the exclusively international character of the Director-General and the staff and not to seek to influence them.”

9 At para. 3.1 (emphasis added). This text was adopted at the 40th session of the World Health Assembly in 1987 by Resolution WHA40.25.

10 Art. 5(3) of the WHO FCTC, available at treaties.un.org/doc/source/RecentTexts/FCTC_en.pdf.

11 Art. 5(1) of the WHO International Code of Marketing of Breast-milk Substitutes, available at www.who.int/nutrition/publications/code_english.pdf.

12 Norum, K, “World Health Organization’s Global Strategy on diet, physical activity and health: the process behind the scenes” (2005) 49 Scandinavian Journal of Nutrition 83 CrossRefGoogle Scholar.

13 Para. 44.

14 Para. 50.

15 WHO Executive Board EB114/19 114th Session 26 May 2004 Agenda item 6.4.

16 “NGOs Denounce Industry Influence Over International Health Policy Big Food and Big Tobacco Flex Muscles With Help of U.S. Government, Face Resistance from Countries Committed to Health” (Geneva, 18 May 2004), available at www.prnewswire.com/news-releases/ngos-denounce-industry-influence-over-international-health-policy-74126907.html.

17 Minute of the WHO Executive Board session of 24 January 2005: Reconsideration of two applications for admission into official relations with WHO (Document EB115/34).

18 Yu, D, “Two percent faster: Asia Pacific to outpace Europe and North America chocolate sales” Confectionarynews.com (25 April 2016), www.confectionerynews.com/Markets/Asia-Pacific-to-outpace-North-America-chocolate-sales-by-2 Google Scholar.

19 Dr Margaret Chan, Director-General, WHO 10 June 2013, available at www.who.int/dg/speeches/2013/health_promotion_20130610/en/.

20 Dr Margaret Chan, Director-General, WHO: “I am fully aware that conflicts of interest are inherent in any relationship between a public health agency, like WHO, and industry. Conflict of interest safeguards are in place at WHO and have recently been strengthened. WHO intends to use these safeguards stringently in its interactions with the food, beverage, and alcohol industries to find acceptable public health solutions.” from the Address to the Sixty-sixth World Health Assembly Geneva, Switzerland, 20 May 2013, available at www.who.int/dg/speeches/2013/world_health_assembly_20130520/en/.

21 “Report of the Commission on Ending Childhood Obesity” (WHO, Geneva, 2016) p. 39.

22 On the EU Platform, see ec.europa.eu/health/nutrition_physical_activity/platform_en. For a critical account, see O Bartlett and A Garde, “The EU Platform and the EU Forum: New Modes of Governance or a Smokescreen for the Promotion of Conflicts of Interest?” in Alemanno, A and Garde, A, Regulating Lifestyle Risks: The EU, Alcohol, Tobacco and Unhealthy Diets (Cambridge University Press, 2014) ch 13 Google Scholar.

23 Markos Kyprianou, 20 April 2005: “Self-regulation of the food and advertising industries is possibly the quickest and most effective way of making rapid and significant progress, and the signs from these industries in Europe are encouraging and positive. However, should this approach fail, or should progress prove disappointing, the Commission stands ready to consider proposing more binding measures.” See europa.eu/rapid/press-release_SPEECH-05-244_en.htm?locale=en.

24 “Fighting obesity: Commissioner Kyprianou ‘names and praises’ companies for concrete commitments” European Commission - IP/06/1530 09/11/2006, available at europa.eu/rapid/press-release_IP-06-1530_en.htm.

25 European Charter on Counteracting Obesity EUR/06/5062700/8 (16 November 2006), www.euro.who.int/__data/assets/pdf_file/0009/87462/E89567.pdf?ua=1.

26 “The challenge of obesity in the WHO European Region and the strategies for response” (WHO Europe, 2007), ch 18 Involving Different Stakeholders, available at www.euro.who.int/__data/assets/pdf_file/0010/74746/E90711.pdf.

27 Directive 2010/13/EU, OJ 2010 L 95/1. This directive codifies Directive 2007/65/EU, OJ 2007 L 332/27. The role of the AVMS Directive in regulating cross-border marketing and the implementation of WHO Recommendation 8 is discussed more fully in the next contribution.

28 See in particular Arts. 4 and 5 of Directive 2003/33/EU on tobacco advertising and sponsorship, OJ 2003 L 152/16, as well as Arts. 9(1)(d), 10(2) and 11(4) of Directive 2010/13/EU on audiovisual media services, JO 2010 L 95/1/EU. For a discussion of these provisions, see A Garde and M Friant-Perrot, “The Regulation of Marketing Practices for Tobacco, Alcoholic Beverages and Foods High in Fat, Sugar and Salt – A Highly Fragmented Landscape” in Alemanno and Garde, supra note 22, ch 4.

29 “UNESDA Commitments to Act Responsibly”, europa.eu/rapid/press-release_IP-06-1530_en.htm.

30 See www.eu-pledge.eu/.

31 The founding members of the EU Pledge are Burger King, Coca-Cola, Danone, Ferrero, General Mills, Kellogg, Mars, Mondelez, Nestlé, PepsiCo and Unilever. They have since been joined by the European Snacks Association and its leading corporate members, McDonald’s, Royal Friesland Campina and the Quick Group.

32 www.eu-pledge.eu/.

33 EU Pledge Nutrition Criteria White Paper updated 2015, available at www.eu-pledge.eu/sites/eu-pledge.eu/files/releases/EU_Pledge_Nutrition_White_Paper_Nov_2012.pdf. An independent evaluation, which contrasted the EU Pledge criteria with alternative nutrient profiling approaches, found that the UK advertising criteria were more lenient (although applied to children under 16s) while the strictest nutritional criteria used regarding advertising to children was applied by Disney: Scarborough, P et al, “How important is the choice of the nutrient profile model used to regulate broadcast advertising of foods to children? A comparison using a targeted data set” (2013) 67 European Journal of Clinical Nutrition 815 CrossRefGoogle ScholarPubMed. One cannot help but notice the lack of WHO and EU leadership on this issue, as discussed in M Friant Perrot and A Garde, “From BSE to Obesity – EFSA’s Growing Role in the EU’s Nutrition Policy” in Alemanno, A and Gabbi, S (eds), Foundations of EU Food Law and Policy: Ten Years of the European Food Safety Authority (Ashgate Publishing, 2014)Google Scholar.

34 Bartlett and Garde, supra note 22, ch 13. See also Galbraith-Emami, S and Lobstein, T, “The impact of initiatives to limit the advertising of food and beverage products to children: a systematic review” (2013) 14 Obesity Review 960 CrossRefGoogle ScholarPubMed; and Jensen, J and Ronit, K, “The EU pledge for responsible marketing of food and beverages to children: implementation in food companies” (2015) 69 European Journal of Clinical Nutrition 896 CrossRefGoogle ScholarPubMed.

35 This trend had already been noted a year earlier in the USA by the Kaiser Foundation in its report It’s Child’s Play: Advergaming and the online marketing of food to children, July 2006. It has since been confirmed by others. See in particular in the UK, A Nairn and H Hang, Advergames: It’s not child’s play (Family and Parenting Institute, 2012) available at www.agnesnairn.co.uk/policy_reports/advergames-its-not-childs-play.pdf.

36 Recommendation 5. On the notion of “settings where children gather”, see also the WHO Framework Implementation Report, 2012, at para 3(4)(2), available at www.who.int/dietphysicalactivity/MarketingFramework2012.pdf?ua=1.

37 The EU Platform annual monitoring reports and the EU Platform special reports are available at ec.europa.eu/health/nutrition_physical_activity/key_documents/index_en.htm#anchor0.

38 First Report on the application of the AVMS Directive, “Audiovisual Media Services and Connected Devices: Past and Future Perspectives”, COM(2012) 203 final, at p. 9.

39 “EU Pledge 2015 Monitoring Report” (March 2016), available at www.eu-pledge.eu/sites/eu-pledge.eu/files/reports/EU_Pledge_2015_Monitoring_Report.pdf.

40 “EU Pledge Monitoring Report 2016”, available at www.eu-pledge.eu/sites/eu-pledge.eu/files/reports/EU_Pledge_2016_Monitoring_Report.pdf.

41 From 1 January 2017, the EU Pledge commitments apply to the following media: TV, radio, print, cinema, online (including company-owned websites and company-owned social media profiles), DVD/CD-ROM, direct marketing, product placement, interactive games, outdoor marketing, mobile and SMS marketing, see euagenda.eu/upload/publications/untitled-60067-ea.pdf.

42 Kendrick, Fiona, “A call to action on childhood obesity strategies” The Grocer (17 March 2017), www.thegrocer.co.uk/buying-and-supplying/health/a-call-to-action-on-childhood-obesity-strategies/550052.article Google Scholar

43 Garde, A and Rigby, N, “Going for gold – Should responsible governments raise the bar on sponsorship of the Olympic Games and other sporting events by food and beverage companies?” (2012) 17 Communications Law 42 Google Scholar.

44 “WHO Framework Implementation Report, 2012” at para. 2(1).

45 ec.europa.eu/commission_2010-2014/borg/docs/speech_20140610_en.pdf.

46 Brady, M and Rundall, P, “Governments should govern and corporations should follow the rules” (2011) 39 SCN News 51 Google Scholar, 55; G Williams, ““Big Food” and Children’s Health” (Briefing Note, I.Family Project, February 2017), www.ifamilystudy.eu/wp-content/uploads/2017/03/12-Garrath-Williams-Big-Food-FINAL.pdf.

47 See also Bartlett and Garde, supra note 22, ch 13.

48 WHO, “Technical Report: Addressing and Managing Conflicts of Interest in the Planning and Delivery of Nutrition Programmes at Country Level”, available at apps.who.int/iris/bitstream/10665/206554/1/9789241510530_eng.pdf?ua=1.

49 Framework of engagement with Non-State actors (FENSA). Sixty-Ninth World Health Assembly. A69/A/CONF./11, available at apps.who.int/gb/ebwha/pdf_files/WHA69/A69_ACONF11-en.pdf.

50 A statement of concern issued by 60 public interest civil society groups during the May 2016 WHA meeting (echoing several other communiques published in recent years) was neither reflected in the final Framework nor even officially acknowledged by the WHO or Member States. That critique discorded sharply with the jubilant mood of Member States when they unanimously adopted the text in the final hours of the Assembly after a week-long series of in camera negotiations from which, ironically, all civil society organisations were excluded. The legitimacy of civil society worries is reflected in the continuing failure of the WHO to even publicly acknowledge that its second largest benefactor, the Bill and Melinda Gates Foundation (which directly foots 13%, $573,629,000, of the entire WHO $4,384,900,000 biennial budget for 2016–17, a close second to the United States Government – see the WHO Budget Portal), holds billions of dollars’ worth of shares in soft drink bottlers, fast food and candy manufacturers, food and pharmaceutical retailers, and cable television companies that sell products about which the WHO has issued recommendations for member states to regulate.