On one hand, the US Department of Health and Human Services (HHS) designates access to nutritious foods as a social determinant of health — a factor, like economic stability and education, that has a major impact on the US population’s health, well-being, and quality of life. But on the other, free market ideals and resistance to regulation have fueled a food industry motivated to obscure key nutritional information, making it harder for consumers to make educated choices about their nutritional intake.

To learn more about what US authorities can and should be doing to advance good nutrition and regulate the food industry, JURIST spoke with Professor Isabel Barbosa of Georgetown Law’s O’Neill Institute for National and Global Health Law about her research on food-industry regulations. Below is a transcript of their conversation, which has been edited for clarity.

Can you please start by explaining what nutrition is, and why it’s important to public health?

When it comes to nutrition, the first point of emphasis is the idea of that it ranks among the key determinants of health. A lot of times when people talk about non-communicable diseases, they tend to think of them as lifestyle diseases. And there is a big component that comes in about consumer choice — people choosing what they want to eat and how they want to live — and that’s super important.

But I think it’s equally important to place this whole debate in the broader context of which factors are shaping our decision-making. Advertising is a piece of that, but also just the experience of going into the supermarket. Even if you want to eat healthily it can be hard to find or identify the products that will actually be healthy for you and not get thrown off by the shapes, the colors, the characters, or some branding that might look healthy, but is actually not.

And the World Health Organization has long developed this concept of the social determinants of health, which consider the conditions that we live in work in, and age to put health in a broad context. But this concept has also evolved so that people are now studying commercial determinants of health. This kind of research focuses on how corporate behavior might also influence our health outcomes. In the US, there will be a White House conference on September 28 that is going to look at these questions on food environments and nutrition.

How does advertising impact public health?

When we’re talking about advertising and the impacts that it has on our behavior and on our health, it is not just a discussion about advertising, because there are a number of public health measures that are related. And if we’re thinking about how to build healthier environments, how to tackle non-communicable diseases, and how to make sure that people are getting healthier and more nutritious diets, we also need to understand how public policy measures relate to each other. The example I think of is labeling. If you want to make sure that you have some adequate restrictions to advertising, I think the first question is this: how do you define the universe of unhealthy foods and beverages? And in that context, labeling has played a big role. A lot of countries in the world, and I would say specifically Latin America, have really been pioneering his whole debate about advertising and marketing lately.

Can you tell us more about how Latin America has addressed food labeling?

Absolutely. I think this is one of those instances where Latin America has been a global pioneer. Nutrition work has been really great in many countries in the region.

For example, Chile was the first country in Latin America to adopt what we call a front-of-pack warning label. There are different shapes and different types, but the one that has drawn most attention in Latin America is one that is black and shaped like a stop sign. The signal basically warns consumers when there is an excess of certain critical nutrients in the product. For example, the warning may signal an excess of sugar, sodium, or fat. And the warning is a very easy way for consumers to identify that there is an excess in the product: it doesn’t require math, for example. The warning is made in a way that enables consumers to factor that information in their decision making, based on the understanding that when you’re at the supermarket or when you’re about to eat something, that’s usually a split-second decision. So Chile started using these front-of-pack warning labels in their products with great results.

Since then, the discussion in Latin America has evolved and other countries have been moving forward. For example, Mexico, Argentina, and Brazil have also recently passed legislation related to this. So Latin America has really been moving forward in this discussion. And depending on the country, some of this legislation or regulation also contains provisions on advertising. For example, if a product has one or more of these warning labels, that means that the company can’t do certain things, like perhaps they can’t use characters that are appealing to children. So what we started seeing in Latin America is that when you go to the supermarket in some countries, you will no longer find Kellogg’s cereal with Tony the Tiger, or you might not find the Kinder Egg at all because they can’t have toys targeting children anymore.

Has there been much research into the effects of these regulations?

Yes, we have already started seeing results tied to labeling regulations. Chile led the way and they have been measuring the impact on purchase decisions and things like that. And the results have been truly impressive, but it is really hard to actually measure the final impact when we’re thinking about non-communicable diseases because these things take a lot of time. If you have a population that is changing its consumption patterns, it will take decades until it’s actually reflected in the public health indicators.

So what people do usually is use proxies. That way, instead of measuring the end goal, they measure, for example, whether people are buying less soda. And those results have been super encouraging. So Latin America is leading the way, but it’s not always easy to implement. It’s an uphill battle. And there’s a lot of opposition, as you can expect, from the food and beverage industry.

Can you tell us about the sort of opposition that exists with respect to these regulations?

Absolutely. For example, there might be really huge lobbying efforts. And there are many people that have been tracking that kind of undue influence on the industry. I like to think of it as a combination of two things:

On the one hand, this industry actively makes a huge effort to block adequate and effective regulation. For example, the industry has been arguing that self-regulation is enough and that the government doesn’t need to intervene. The industry will say they make their pledges, they come together as different companies, and they agree to certain minimum standards. There’s literature that indicates that this has no effect whatsoever. So, on the one hand, the industry has been trying to withhold regulation.

Then, on the other hand, there is a huge effort related to aggressive marketing and advertising, which we talked about earlier in our discussion. And a big part of the reason why our food environments are the way that they are today is because of all these things: the industry has been working really hard to prevent the government from regulating its behaviors effectively, and companies across the industry continue to use very sophisticated tactics to promote their products and to make sure their brands stick.

When these two things come together, as we have seen in a lot of countries in the world, food environments change dramatically.

And it’s interesting, because non-communicable diseases, for the longest time, were called silent epidemics — because they tend to be the sorts of diseases that have been building up, so it’s not like an infectious disease pandemic that quickly takes over the world, like COVID. With COVID, you can actually understand why it spread so quickly, but it is not the same when it comes to non-communicable diseases. What you see is that a lot of similar patterns are happening in different countries. People are transitioning from diets that were much less processed and much more in line with traditional foods, and now they’re moving toward diets that are ultra-processed.

And it’s something that’s not isolated: it’s happening in Brazil, but it’s also happening in Mexico, in Colombia, and in different countries around the world. Which leads us to ask why we are seeing the same trends in different countries.

And with non-communicable diseases, there are a lot of factors that are involved in the rising rates: part of it is an aging population, and then a huge part is what we call the modifiable risk factors. And that’s what makes non-communicable diseases largely preventable, because if you can identify these risk factors and you can get ahold of them, you can actually reduce the rates in the long run. And that goes back to understanding the determinants of health, including corporate behavior.

In a globalized world, what kind of tactics are companies across many countries using at the same time that’s producing a big change in people’s diets?

How does this discussion differ between the US and Latin America?

For starters, there is something that’s called the nutritional transition. A lot of people have been studying how diets have evolved from traditional diets to these more processed diets that I was referring to previously. I think it’s important to understand that not all countries are in the same stage of this transition, and the US is further along. Sometimes in the US, it’s cheaper to eat ultra-processed products than it is to eat what we call real food. In Latin America, there are many countries where this hasn’t happened yet, and it’s still cheaper to eat real food than it is ultra-processed products.

That’s also relevant when you’re thinking about how to approach this problem. In Latin America, a lot of efforts are taken to protect traditional diets. When I moved to the US, I went to the supermarket and I wanted to try to find healthy products and I was overwhelmed by the number of options that are super unhealthy and by how hard it is to navigate this if you try to look at the labels. I think the US is behind other regions of the world that have been thinking about how to improve their food environments. Not to mention the disparities within the country. For instance, the so-called food deserts where you literally cannot find any options besides fast food or junk food. It’s a complex environment.

And then from the legal perspective, it’s also very complex, because there’s always the threat of litigation – even empty litigation – once you decide to move forward with these kinds of measures that would do a lot for the food environments. There’s also this sense in the US of corporate freedom which I find disproportionate. And lobbying is a common practice, as you can see in other industries like gun lobbying or tobacco lobbying. So I think the US has a very complex environment, including from the legal standpoint. However, that is not to say that measures should not be taken in the US to improve the food environment.

In addition to labeling, what are other measures US authorities could take to better regulate the food industry?

There are many public policy measures that relate to each other when it comes to food environments.

For example, fiscal measures, such as taxation, have a huge role to play. When we’re thinking about taxes, specifically, they may have different goals. One of them is just raising revenue, but another one is discouraging the consumption of unhealthy products. And we know there are specific rates of taxation [at which disincentivizing efforts] are most effective, which lots of economists are studying.

Another measure is thinking about how to restrict marketing in lawful ways, like making sure that children don’t get taken advantage of.

There’s also the protection of public environments. For example, when we’re thinking about school environments it’s so important to make sure that school meals are nutritious.

How do these measures to improve the food environment compare to measures used in the tobacco industry?

I think that you’ve touched upon a super important point with the comparison to tobacco. We have evolved a lot in the tobacco community over the decades, and I think that there are a lot of factors that played into that.

One of them is that with litigation, there was a lot of access to tobacco industry documents that were pretty outrageous. There were quotes about how tobacco industry executives knew about — and tried to disguise — all of the health harms. All of that generated a lot of political capital to move forward with public health measures.

I think we’re not quite there yet with the food and beverage industry because we don’t have the smoking gun. There is a lot of documentation of the food industry’s bad practices, but it’s a different market.

Tobacco really is a less complex market. It’s a handful of companies that basically control everything, and there’s not a lot of diversification of products. Nowadays it’s getting more complicated because of the new products, like e-cigarettes, but it used to be much more straightforward.

When we’re thinking about food, it is so different because we have a very complex market with a lot of different players. It’s very heterogeneous. And everyone needs to eat; it’s one of our basic necessities. So this industry is much harder to navigate.

But the question is: has that been enough to gather public support for measures to improve food environments? In some instances, yes. I think we’ve come a long way. There are parts of the world where it’s very different now than it was 20 or 30 years ago. But could it be better? Absolutely. We could be doing a much better job, and I think it’s something that needs public support. In the end, it’s a political discussion, and in order to act, the government needs to be pressured; it needs to be pushed. And we all have a role to play in that.

Because this discussion touches on both food safety and consumer protection, which agency do you think is best suited to handle it: the Food and Drug Administration or the Bureau of Consumer Protection?

It is a complex issue because it deals with a lot of different disciplines and topics. What we have seen in many countries is that there are different branches of government that are working from different perspectives on the same issue. What happens is that this is an economic discussion, but it’s also a health discussion, and it’s also an agricultural discussion, and all of that is intertwined. Thus, one of the challenges is just looking for policy coherence.

For example, there have been instances in Brazil where we have seen different ministries within the government taking stances that are contradictory. Because each of these agencies has its own regulatory powers or authorities, they have different scopes of action.

All of that comes together when we’re thinking about policy coherence across government. Also, there are different levels of government: are we talking federal level, state level, or municipal level? So I think you’re on point when you are flagging the complexity of the issue in terms of the different agencies involved. A lot of these discussions are happening in other industries as well, and we need to keep an eye out to see how it’s playing out with pharmaceuticals and opioids and tech, for example.

In an ideal world, what would the future of food look like to you?

That’s a good question, but a hard one to answer. First of all, health is something that we can’t dissociate from food environments. When we’re thinking about how to improve the health of a population, we need to be thinking about non-communicable disease prevention, including thinking about such risk factors as unhealthy diets. And in the long run, it pays off in every aspect: human lives and resources — all of that is connected. So I would start off by highlighting this consciousness that things are interconnected and that we cannot be focusing on health from a very narrow perspective, but rather we should broaden it to think about prevention in the regulatory sense.

The other thing I would say is that — like I started off saying at the start of the conversation — consumer behavior is often framed around choice, as if choice were something independent of the context where it’s inserted. So in terms of my dream, what I would really like to see is for the overall context to be tweaked in a way that the healthier decision becomes the easier decision. What we have nowadays is the opposite. Even if you’re committed to seeking healthier behaviors, you have to jump through hoops. The healthier behavior is often the most difficult one, and I think this should be reversed.

Another point I would say is that what we have nowadays is a system that’s deeply inequitable in many senses. There are groups of our population that are literally cast aside. The whole issue of how food systems are generating poor health outcomes is not affecting all of us in the same way; it has a disproportionate impact on certain groups of a population. And that is something that needs to be called out. We cannot be thinking about how to build an equitable society when eating healthy foods is a class privilege or a racial privilege. So making sure that this issue of inequity is front and center of the debate is super important.

And finally, I wanted also to talk about the philosophical underpinnings that we have had in this whole discussion because oftentimes regulation comes across as a dirty word in the public debate. When people think about regulation, they think about the government exceeding its powers. They sometimes even go straight to prohibition: I can’t tell you how many times I’ve been talking about regulating food environments, and people tell me how they don’t want their soda to be prohibited.

It is important to realize that regulating is not prohibiting. Regulation is a spectrum, and there are many tools that fall within this spectrum. When we’re thinking about this spectrum, there are extremes:

On one end, the belief is that the government shouldn’t do anything and companies should be left to do whatever they want to do.

On the other end, the belief is that government should actually impose a life ideal on people.

But in between, you have a lot of room for the government to act in order to safeguard space for people to actually be able to choose what happens. Nowadays, this space is taken up by corporate behavior, so we think we are choosing, but we are not really being given the choice.

Overall, there are a lot of things that need to be done and a lot of regulatory tools that need to be used by the government, and it doesn’t mean that the government will be making the choices for you or that it will be imposing its life ideal on people. That’s not desirable, but it’s also not desirable that companies are imposing their views on people. So there’s a big space in between, and I think that’s what we need to explore.