Alcohol labelling and warnings: how progress at the Codex Alimentarius Commission can help States overcome challenges at the World Trade Organization

By Nikhil Gokani, Lecturer in Law, Essex Law School, University of Essex

Nikhil Gokani works on food and alcohol labelling regulation in the UK, EU and globally. Nikhil is chair of the Alcohol Labelling and Health Warning International Expert Group at the European Alcohol Policy Alliance (Eurocare). He is also a member of the Technical Advisory Group on Alcohol Labelling at WHO. In this post, Nikhil writes about the work he is involved in on developing international standards, which can help countries navigate challenges under the rules of the World Trade Organization.

Alcohol-related harm and consumer protection

Consuming alcohol is a causal factor in more than 200 diseases, injuries and other health conditions. Alcohol consumption affects other people, such as family, friends, colleagues and strangers. Globally, about 3 million deaths each year result from the use of alcohol. Beyond health, there are significant social and economic burdens.

Consumers do not have sufficient knowledge about the content and effects of alcoholic beverages. Most consumers are unaware of the energy and nutrition values (such as amount of carbohydrates) and ingredients. Few consumers are aware of the health risks, such as alcohol causing at least seven cancers.

Alcohol labelling and global progress

Alcohol labelling is an important source of information for consumers. Labelling is unique in providing information at both the point of purchase and consumption. Labelling improves knowledge. It is an effective measure to help ensure consumers are well-informed and not misled. Increasing evidence also shows that health information can empower consumers to make healthier consumption decisions, including drinking less.

Unfortunately, few countries in the world require that consumers are given essential facts on labelling, such as ingredients lists and nutrition declarations. Even fewer countries require beverages to be labelled with information warning consumers about the hazards of drinking alcohol.

The most recent success was in Ireland where new rules will require alcohol packaging to display warnings that “Drinking alcohol causes liver disease”, “There is a direct link between alcohol and fatal cancers” and a pictogram showing that alcohol can harm the unborn child if drunk during pregnancy. Countries like Ireland, unfortunately, face international legal challenges, particularly under international trade law.

International trade law and international standards

International trade law can constrain the regulatory autonomy of States. Significant to alcohol labelling is the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (TBT Agreement). Most significantly, Article 2.2 of the TBT Agreement states that technical regulations, including rules on alcohol labelling, shall not create “unnecessary obstacles to international trade”. Technical regulations shall not be “more trade-restrictive than necessary to fulfil a legitimate objective”. Preventing alcohol-related harm is indeed a legitimate objective. However, many States trying to introduce better alcohol labelling rules have been challenged because other States have argued that labelling rules go beyond what is more trade-restrictive than “necessary”.

When a WTO State’s rule about alcohol labelling is challenged, international standards can either help or hinder them.

On the one hand, Article 2.4 of the TBT Agreement states that where “relevant international standards exist” States “shall use them…as a basis for their technical regulations” except when this would be ineffective or inappropriate Therefore, where international standards are not aligned with public health interests, they can make it harder for States to introduce effective national rules.

On the one hand, Article 2.5 of the TBT Agreement provides a powerful defence mechanism. It states that, when a technical regulation is “in accordance with relevant international standards”, there is a rebuttable presumption that the national rule does not create an unnecessary obstacle to international trade. Simply stated, where the State complies with a relevant international standard, they have a potentially strong defence for their labelling rules. Therefore, good international standards can be very powerful to help countries defend their national labelling policies.

Codex Alimentarius

An international standard is one which is made by a recognised body and compliance is voluntary. For alcohol labelling, there is indeed an international standard: the Codex Alimentarius is a collection of standards, guidelines and codes adopted by the Codex Alimentarius Commission.

Where alcohol labelling is in compliance with relevant Codex standards, States could use this as a defence under WTO rules. This underlines the importance of having good Codex standards that support effective national rules on alcohol labelling.

Significant progress has been made at the Codex Alimentarius Commission. Alcohol labelling was discussed at four Sessions of the Codex Committee on Food Labelling (CCFL). The Report of the 46th Session of CCFL noted “there was common ground on which to proceed with the work” but little further progress has since been made in recent years. At that Session, the Committee agreed that Russia, European Union and India with assistance from WHO and Eurocare would prepare a discussion paper for consideration at the next meeting. In fact, this was the first time this Committee included an NGO in the preparation of a discussion paper, which is a testament to the global leadership by Eurocare in this field.  Unfortunately, however, no discussion paper was submitted by Russia. Therefore, WHO and Eurocare each submitted their own discussion paper to keep the matter moving forward. The WHO representative spoke objectively and convincingly at the 47th meeting of CCFL. These efforts led to alcohol labelling remaining on the Codex agenda – something which several States, no doubt under the influence of the powerful alcohol industry, had resisted.

The Codex Alimentarius Commission has now started a new consultation process. It issued a Circular Letter which asks State members and Observers to comment on how work on developing alcohol standards should proceed.

For this consultation process to work best for public health and consumer protection, we need everyone to contact their governments (emails here) to demand effective progress at Codex. Please join us in these efforts!