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Implications of international trade and investment agreements on policy space for restricting marketing of unhealthy food and beverages to children: lessons from inter-disciplinary expert interviews

Abstract Objective: To determine the implications of international trade and investment agreements (TIA) for national governments’ policy space to restrict the marketing of unhealthy food and beverages to children. Design: In-depth interviews based on a series of policy scenario ‘vignettes,’ guided by an adapted scenario analysis methodology. Setting: Global. Participants: Nine key informants from relevant sectors, with expertise regarding the intersection of public health nutrition policy, international trade law and international investment law. Results: Participants consistently identified the relevance of several principles, common to many TIA: non-discrimination, necessity and justification, market access requirements and quantitative restrictions, intellectual property rights and trademark protections and fair and equitable treatment of investors. Two main policy design factors that interact heavily with TIA-related policy space were the framing of objectives and regulatory distinctions drawn. Contextual factors may shape the analysis of TIA-related policy space on a case-by-case basis, while the relative power of the actors and institutions involved in both domestic and international policy spheres may influence whether and how such legal constraints to policy space are activated. Conclusions: Regulatory marketing restrictions run the risk of incurring challenges under World Trade Organization agreements and other free TIA. However, concerned policymakers should be aware of the difference between theoretical risk, threat of a challenge and realistic initiation and/or loss of a formal dispute. Our findings indicate that there is policy space to adopt significant marketing restrictions, though an understanding of these legal risks and strategic policy design are important.