Non-Retrogression as Progress

Latin America has often led the way in adopting innovative standards to protect the right to health, particularly in the regulation of risk factors for non-communicable diseases (NCDs), such as tobacco and unhealthy diets. Some countries have spearheaded progress at the global level with their innovative experiences being replicated elsewhere. However, some of these advancements have recently been jeopardized as governments prioritize private economic interests over health.

Judicialization has thus emerged as an opportunity – perhaps the only one – to defend progress achieved. Given recent judicial rulings in Uruguay and Ecuador, we reflect on the fragility of legal interventions that threaten powerful economic interests, as well as on the opportunities offered by human rights-based litigation to mitigate the undue influence of non-state actors and prioritize the public good.

Business practices as commercial determinants of NCDs

NCDs are one of the leading causes of death and disability globally. More than two-thirds of these diseases are caused by preventable risk factors, such as the consumption of tobacco, alcohol and ultra-processed products, produced and aggressively marketed by powerful, mostly multinational companies. The actions of these companies are commercial determinants of health. In this context, regulatory measures that address such determinants and promote healthy food environments are essential to promote health, quality of life and well-being. These regulatory measures align with global and regional public health recommendations and are mandated by human rights frameworks.

Prioritizing economic interests over health in Uruguay and Ecuador

Uruguay is a global leader in tobacco control policies. It was one of the first countries in the world to adopt tobacco plain packaging, as well as a total ban on advertising, promotion and sponsorship (APS) of tobacco products. Additionally, it won a landmark international arbitration case against tobacco giant Phillip Morris, setting a global precedent. Despite this progress, at the end of 2022, the Uruguayan government loosened tobacco control policies by Executive Decree, allegedly to fight against illicit trade. In doing so, it opened opportunities for the tobacco industry to introduce distinctive elements in cigarettes and packs, contradicting the APS ban. Similarly, the Ecuadorian Executive hampered public health measures by reducing taxes on cigarettes, sugar-sweetened beverages and other products harmful to health, allegedly to combat inflation.

These cases share important parallels. Firstly, both countries modified regulations that protect health to promote the economic interests of health-harming industries, with the purported goals of fighting illicit trade and inflation. Moreover, regulatory changes lacked grounding in scientific evidence and were done without consulting relevant public health actors (in Uruguay) or against the explicit recommendations of public health authorities (in Ecuador). Thus, evidence-based regulations were replaced with arbitrary ones, contradicting international law and suggesting strong industry interference on the part of industries that have a widely documented history of obstructing regulations that threaten their economic profits. In fact, the Uruguayan President himself explicitly admitted this industry interference.

Judicialization as a tool to defend human rights

Civil society organizations quickly and successfully brought those regulatory setbacks before the courts, with groundbreaking judicial rulings provisionally suspending the Uruguayan Decree and repealing the Ecuadorian one.

Notably, both rulings are firmly anchored in human rights. In Ecuador, the ruling explicitly stated that “tax measures on unhealthy products materialize State obligations to respect  human rights”,¹⁾ recognizing that the consumption of these harmful products is a response to the strong influence of the private sector and, therefore, “not a purely individual decision.” The judgment recognizes the role of health-harming industries as determinants of health that must be addressed by States. In Uruguay, where the procedural avenue used by civil society was a writ of rights to protect children (amparo de niñez), the judgment was heavily grounded in the rights of children and adolescents, emphasizing that measures on cigarette packs must prioritize their best interests.

Additionally, both rulings recognized the right to health in its preventive dimension, particularly in addressing regulatory measures aimed at discouraging the consumption of harmful products to prevent disease. Remarkably, although this preventive dimension of health determinants is well recognized in both international human rights law and at the comparative level, their domestic judicialization remains infrequent. These decisions thus expand the judicial protection of the right to health.

In Uruguay, the recognition of the duty of prevention is directly linked to the type of legal action used, as the existence of “actual or imminent” harm is one of the procedural rules for admission of the amparo. The judgment uses this duty to justify a procedural innovation, by reversing the burden of proof at the face of the government’s failure to prove that the regulatory rollback “does not generate any harm” to health.

The Ecuadorian ruling is also based on the preventive function of health taxes. The ruling recognizes that “by modifying factors that make it easier for people to get sick, healthy taxes contribute to creating healthy environments and materialize the obligations of States in relation to the right to health and other interrelated rights.” Therefore, by seeking to prevent damage to individual and collective health and health systems’ overloading, the judicial decision addresses health taxes’ structural implications.

The rulings are also innovative in their approach to the principle of progressivity and the prohibition of unjustified retrogression, present in both cases, but central in Ecuador. The Ecuadorian decision acknowledges that rights “may not be diminished, impaired or eliminated, nor [may] persons be deprived of acquired conditions of protection or placed in a situation of vulnerability.” Although the ruling recognizes that the prohibition of retrogression is not absolute, it emphasizes the need for due justification. Thus, it understands that the State’s “lack of objective and reasonable justification” issuing a decree that is “manifestly” contrary to national and international regulations, constitutes a retrogressive measure in relation to the right to health and the rights of children and nature. This is especially relevant on account of the retrogression dealing with preventive regulations, with the Ecuadorian decision acknowledging that the modified Decree diminished the “conditions under which healthy choices are the easiest and preferred by individuals.” This represents an innovative approach to the prohibition of retrogression.

In relation to the reduction of healthy taxes and their retrogression, an additional consideration is their ability to generate economic resources that can be used for the satisfaction of human rights- particularly relevant in resource-dependent dimensions of economic and social rights. In this regard, decreases in health taxes are not only retrogressive in that they reduce protection to individual and collective health, but also diminish revenues, becoming doubly retrogressive. This latter issue was only tangentially addressed in the cases, offering an opportunity to strengthen arguments relating to non-retrogression in the future.

The relevance of a rights-based approach to procedural issues

The cases of Uruguay and Ecuador also provide insights and lessons learnt from a procedural standpoint.

In Uruguay, the decision to challenge the modified Decree through an amparo de niñez was an innovation, since this remedy is typically intended to defend individual children’s rights rather than to promote collective rights. The judicial debate was enabled by a progressive judge who took a rights-based approach and understood both the procedural requirement of “actual or imminent” harm and rules for standing flexibly. Otherwise, the remedy could have been dismissed on procedural grounds, leaving civil society without alternative avenues for action.

While the Uruguayan Decree is currently suspended, its final fate is still pending in the administrative courts. Here again, procedural considerations will be at the forefront, as a restrictive interpretation of the constitution has been historically used to deny civil society standing to present actions for nullification of administrative acts on grounds of collective rights or diffuse interests.

In Ecuador, the judicial action was initially rejected for not meeting procedural requirements. Consequently, as in Uruguay, a progressive understanding of procedural rules by the appellate judge was fundamental for the success of the action.

Reflections

The cases portray how norms that protect health are fragile in the face of economic power and underscore the need to monitor and defend such measures beyond the adoption stage and into implementation.

Likewise, the cases of Ecuador and Uruguay illustrate a chasm between the highest executive authorities and their technical bodies, as well as a disregard for evidence-informed policymaking. Regulatory modifications in both Uruguay and Ecuador were not grounded in evidence, in terms of either the necessity or suitability of the changes. This sheds light on the vital role of the judiciary as a guarantor of rights in cases where governments appear to work in favor of corporations with enormous influence and political power. The role of an independent judiciary, capable of innovating both substantively and procedurally, is paramount in defending public health.

In this context, having well-organized and well-resourced civil society organizations to fight quickly and decisively to protect human rights is of paramount importance. The cases analyzed here show the potential of litigation to safeguard not only the right to health but also other critical human rights challenges – including environmental degradation and the climate emergency.