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 Barroso Commission 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 Androulla Vassiliou 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 European Commission 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 David Byrne (the first being played by the EU in the A regulation on the use of European Commissioner 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.