Balancing the right to health and commercial speech: the approach of Argentina's Supreme Court.

Abstract

Noncommunicable diseases (NCDs) cause significant human and economic costs globally. Each year, 17 million people die from an NCD before age 70. The burden of NCDs is associated with socioenvironmental, cultural factors and social behavior, including modifiable risk factors like tobacco use, unhealthy diets, physical inactivity and alcohol consumption. NCDs can be prevented if healthy environments are guaranteed by the promotion of effective public policies that control the behavior of the tobacco, food and alcohol industries. The regulation of marketing strategies of unhealthy products, and even its ban, has been demonstrated as an effective measure to protect the right to health and promote human rights. However, companies that produce and commercialize these ultra-processed food products argue that protecting measures restricting marketing violate their constitutional right to freedom of speech, among others. Regarding tobacco product marketing activities, the Supreme Court of Justice of Argentina has ruled that it is afforded less constitutional protection than political speech and could be restricted to protect public health and human rights. This article examines the tobacco marketing case and, using an analytical framework argues that the proportionality test used by the Supreme Court could indeed be applied to ultra-processed food products. It is concluded that a complete ban on ultra-processed food product marketing would be constitutionally valid.