Policy Brief

June 2008

The King Baudouin Foundation and Compagnia di San Paolo are strategic partners of the European Policy Centre

Is the health of the Single Market under threat?

By Marie-Hélène Fandel

Background

A significant increase in the rate of health rather than health systems The recently ‘non-communicable’ diseases – per se – and by striving to influence sought to influence the debate by mostly lifestyle-induced – has people’s behaviour while trying to producing “vision papers” on prompted warnings that the impact avoid accusations of excessive promoting healthy diets and of unhealthy living on Europe’s ‘nannying’ or ‘meddling’. physical activity, on nutrition public finances could be “as bad and obesity, and on sport. In as climate change”. Each Member State has devised January 2007, former Health its own recipe for changing Commissioner Markos Kyprianou Amid all the evidence of rising behaviour, using a mixture of presented a Green Paper entitled obesity, increasing alcohol traditional ‘ingredients’ ranging ‘Towards a Europe free from consumption and continued high from communications’ campaigns tobacco: policy options at EU level’ levels of smoking (which remains targeted at youngsters, warning which advocated a comprehensive the third biggest cause of death in labels and fiscal incentives, to public smoking ban across Europe. Europe), there is mounting concern restrictions on advertising that the casualty of all this may not alcohol and cigarettes or In April 2008, his successor just be our waistlines, hearts, lungs advertising unhealthy foods delivered a and government budgets. during children’s television speech to the European Alcohol programmes, smoking bans in and Health Forum (EAHF) in which The Single Market also needs to public and/or workplaces, or even she underlined the need to curb be safeguarded to avoid the risk of limits on the use of trans-fats. alcohol drinking in Europe and fragmentation as Member States stop alcohol advertising being and the EU increasingly intervene What the EU can do for targeted at young people. to tackle lifestyle risks. your health She also hinted at possible EU governments have responded to It is not only the EU’s 27 regulatory action if the EAHF the growing concern about the governments which are taking (a voluntary body made up of impact of unhealthy lifestyles on action: the Union itself is business and non-governmental individuals, on national budgets increasingly playing a role in organisations which is committed and on the economy as a whole, by this area, despite the strict limits to taking action through self- focusing on the prevention of on its powers to intervene on regulation) does not succeed in chronic diseases – i.e. on public health issues. reaching its objectives. Ms Vassiliou has also announced Protecting public health in impose an almost total ban on that the is the Internal Market is also an all forms of advertising and aiming to draw up a joint action important aspect of EU consumer sponsorship of tobacco products plan by 2009 to fight cancer. policy, which has resulted, for through legislation, but the According to the World Health example, in EU-wide food European Court of Justice (ECJ) Organisation’s Regional Office for safety standards and rules on ruled that this exceeded the Europe (WHO Europe), cancer labelling to ensure customers Union’s Internal Market powers rates could theoretically be are provided with comprehensive and encroached on health policy, reduced by 40% through changes information on the content of which is matter for individual in lifestyle behaviours. food products and on genetically Member States. modified (GM) foods or foods These recent examples containing GM ingredients. The issue came to the fore again demonstrate the increasing role when (the first being played by the EU in the A regulation on the use of to field of health policy – and nutrition and health claims made combine the health and consumer the European Commission’s for food was also adopted in protection portfolios) proposed a willingness to act. Indeed, it is December 2006, harmonising new Directive aimed at introducing obliged to do so in many cases the rules governing the use of an EU-wide ban on advertising because, despite its limited terms such as “low fat”, “light” cigarettes in newspapers and competences in this area, or “high fibre” to prevent magazines, and on the Internet, health has permeated almost consumers from being misled. and the sponsorship of events or all policy fields and the Union More recently, the Commission activities involving or taking place now plays a role in many proposed introducing compulsory in several Member States. closely-connected issues. front-of-pack labelling for a set of nutrients including fat, This was opposed by Germany, The EU Treaties state that the salt and sugar, as part of the which argued that, once again, Community “supports and anti-obesity drive. the EU was exceeding its powers complements” the Member States under the Treaty’s Internal Market in improving the working The health of the provisions (Article 95) and took environment and protecting Single Market the case to the ECJ. workers’ health and safety – a goal which has been a key driver Single Market ‘harmonisation’ This time, the Court’s Advocate- behind the growing number of remains the most important aspect General argued that the legal bans on smoking in public places. of EU intervention in the health basis used for the Directive was policy field. correct and that the law was EU action also complements “appropriate for putting an end to other national policies aimed One area of EU activity which the divergent development of at improving public health, illustrates not only the link national rules in this field”. The preventing illnesses and between health, lifestyles and the Advocate-General’s opinion was avoiding pandemics. Single Market, but also the not binding, but it probably complexity of this issue, is the played a role in Germany’s For example, in the event of an regulation of tobacco advertising decision to drop the case. outbreak of avian flu or foot and in the Union. mouth disease, the EU has to This amounted to a recognition act swiftly to halt, contain or Advertising tobacco on television of the Union’s role in health prevent contamination, given has been outlawed under the policy insofar as it relates to the increased risk of such ‘Television without Frontiers’ safeguarding the Single diseases spreading in a border- Directive since 1989. Nine Market, thus opening up new free Single Market. years later, the EU attempted to opportunities for EU action.

State of play

The picture is complicated by an impact on the free movement on products high in fat, sugar, the fact that Member States have of goods within the Single Market. or salt. This could potentially the right to introduce national affect any food product from measures in pursuit of public These not only include restrictions non-alcoholic drinks, canned health objectives which may have on alcohol and tobacco, but also food, snacks, sweets, cereals and even bread to goods incorporating a Swedish government ban on Instead of requiring approval of bio- or nanotechnologies. private individuals importing each national product before it alcohol drinks. The government can be sold in another EU country, This debate is hardly new: argued that the measure was the Court ruled then that any Member States have always been designed to limit alcohol product which could be lawfully able to restrict the free movement consumption, but the Court ruled marketed in France could lawfully of goods on health grounds under that it could not be justified on be sold in all other Member States. Article 30 of the Treaty, which public health grounds because This is a principle well worth allows them to impose quantitative it was neither proportionate protecting for the sake of the restrictions on imports to protect nor effective. health of the Single Market. public health. Restrictions which affect a large The exceptions provided for This right reflects a recognition number of products and under Article 30 can clearly that, in line with the subsidiarity manufacturing processes can be invoked, but only if they principle, it is up to individual also cause confusion on the are proportionate and effective Member States to decide how best market. For example, Denmark to protect public health. However, to protect their citizens’ health. led the way in capping the use the term “proportionate” is of trans-fats (which can clog open to interpretation and, in But it is also open to abuse for arteries and cause heart disease) the absence of an EU-wide domestic political reasons and in processed food, and this was framework, the ECJ may to promote narrow national soon followed by voluntary increasingly be effectively asked interests – as happened, for measures in the UK. However, to decide between the health example, when some EU countries to date, other EU Member States of citizens and that of the extended their bans on imports have not taken any action in Single Market. of British beef until long after the this area. Union had decided that mad cow In part because of overlapping disease had been brought under Furthermore, national restrictions responsibilities, therefore, control and no longer posed a introduced on health grounds EU intervention in the public risk to human health. often start with good intentions, health arena tends to be uneven but can impact on the Single and patchy. Even when governments have Market in the same way as good intentions, the restrictions requirements outlawed by the ECJ So where should the Union can be excessive. For example, the in the seminal Cassis de Dijon act, and what exactly should it Rosengren ECJ ruling overturned ruling of 1979. be doing?

Prospects

Above all, the EU needs to Genetically Modified Organisms crop concerned, based on an take good care of the Single (GMOs) are a case in point. evaluation by the European Market and prevent it from France has, for example, taken a Food Safety Agency (EFSA), due fragmenting over health issues. tough stance on this issue and in October. This requires a coherent recently invoked the precautionary framework for setting the principle when it introduced a Austria, Denmark, Greece and scientific criteria and boundaries ban on planting a GM corn Luxembourg have also been on what restrictions can be crop – the only one commercially battling with the Union for years imposed on health grounds. used in France. President Nicolas for the right to maintain their Sarkozy suggested, however, that national bans on various types This is becoming evermore this did not mean the end of GM of GMO which are generally important as health-related crop cultivation in France, but allowed on EU soil. Such bans goods and services are rather that more funds would be were justified by the governments increasingly being traded allocated to national research. concerned partly on the basis of across borders, and the available scientific evidence, and “goods of the future” are This issue is bound to resurface partly on political choices. increasingly incorporating at forthcoming Agriculture bio- and nanotech processes Council meetings or when the EU divisions over this issue have whose impact on health is either Commission publishes a new also led to problems with the unknown or disputed. assessment of the GM corn World Trade Organization, and the Commission is now have proved instrumental in impact of policies designed to considering how to deal with this. developing an EU-wide pledge change individual behaviours. to halt the marketing of junk food The debate over ‘Frankenstein to children under 12 by the end Developing an EU-specific body foods’ could also get even hotter if of 2008. This pledge is expected of science-based evidence on the and when the public become more to be honoured by major food main existing determinants of aware of nanotechnologies. companies which account for health could thus contribute to 50% of food and drink advertising evaluating Member States’ claims Traditionally used in electronics in Europe. and make it clearer whether and computers, nanotech can now decisions at national level are also be found in food and drinks Many global companies are being made primarily on scientific including nutritional supplements, also pre-empting a possible or political grounds. slimming products, canola oil or all-out ‘war’ on fat, salt and chocolate drinks. sugar by changing their recipes Preventive action should also be and offering ‘healthy choice’ better structured. In particular, In the United States – a country products. The EU could surf rapid alert systems would facilitate arguably more open to new this wave and propose higher information exchange between technologies – nanotech is pan-European standards through Member States and help to already facing growing public self-regulation. define EU-wide measures to opposition, signalling that the restrict the marketing or use of ‘nano-honeymoon’ may well be However, a higher degree of ‘high-risk’ products. over: the more consumers learn EU cooperation and even about the nature and potential harmonisation is needed, as there EU Single Market policy could also risks of nanotech applications, is often a limit to how effective make a more positive contribution the more risk-averse they become. purely national restrictions on to public health. health grounds can be. More independent scientific If a Member State finds it evidence is therefore crucially In the UK, for example, cigarettes legitimate and lawful to restrict a needed to separate political are heavily taxed, but Europe’s specific product or manufacturing from science-based decisions. increasingly mobile consumers buy process, this should be explored The EFSA could be a possible them in less-heavily taxed countries and potentially applied in other conduit for more research and whenever they can. As a result, countries, applying the logic evidence- gathering, but the about 30% of the cigarettes smoked of the Cassis de Dijon case resources allocated to this so far in the UK are not purchased the other way round: i.e. if a appear modest. domestically, considerably product is not good enough undermining the impact of national for a Frenchman or woman, why Developing a more effective ‘nicotine taxes’. should it be OK for a German? policy mix The Lisbon Treaty recognises the In other words, the EU has to Heavy-handed regulation from importance of health for the raise its game by improving its Brussels is not necessarily the sustainability of Europe’s public capacity to gather and develop only, or indeed the best, way sectors, and calls on Member States a European body of scientific forward. Efforts to combat lifestyle to cooperate more closely. evidence and by developing a risks should also provide avenues more effective policy mix. for cooperation between industry, Such cooperation should be civil society and EU institutions strengthened, particularly when Otherwise, modern Europeans’ in the form of self- and especially it comes to exchanging best lifestyles may end up damaging co-regulation. practices. All the EU Member not only their health but also States are using the same that of the Single Market. To take just one example of policy instruments to stem the how effective this approach development of preventable Marie-Hélène Fandel is a Policy can be: an EU initiative on diet, illnesses, especially cancer Analyst at the European Policy physical activity and health and heart disease. What is Centre. These issues raised in this launched by Commissioner missing at EU level is adequate paper are discussed within the Kyprianou in 2005 appears to information about the actual EPC’s Lifestyle Risks Forum.

European Policy Centre I Résidence Palace, 155 rue de la Loi, 1040 Brussels, Belgium Tel: +32 (0)2 231 03 40 I Fax: +32 (0)2 231 07 04 I Email: [email protected] I Website: www.epc.eu

With the support of the European Commission