NCD prevention in COVID-19 litigation: What are the future implications for NCDs and the law?

• Author: Elisabet Ruiz Cairó, Daniel Hougendobler, Kritika Khanijo, Benn McGrady and Kate Robertson
• Pages: 214-233

NCD prevention in COVID-19 litigation:

What are the future implications

for NCDs and the law?

Elisabet Ruiz Cairó,1 Daniel Hougendobler,2

Kritika Khanijo,3 Benn McGrady4 & Kate Robertson5

Abstract

Caribbean countries adopted measures during the acute phase of the COVID-19

pandemic that impacted upon NCD risk factors. This article describes case law from

around the world where similar interventions were challenged, shedding light on

legal questions, such as what duties and powers States bear to regulate NCD risk

factors and what protections States must aord the population on NCDs. Public

authorities are granted a broad margin of discretion to regulate to protect health and

additional NCD prevention measures may be justiable in a public health emergency,

but measures are less likely to survive scrutiny if they increase NCD risk factors.

Keywords

NCDs, COVID-19, Fundamental rights, Proportionality, Health law

Introduction

Public health interventions to address the COVID-19 pandemic have resulted

in extensive litigation worldwide. Legal challenges have been made on a variety

of dierent grounds, including claimed violations of the rights to health, non-

discrimination and property, as well as freedom of trade and occupation, freedom of

assembly, and freedom of speech and expression. Noncommunicable diseases (NCDs)

have featured in this litigation in a variety of ways, including through challenges to:

1 Public Health Law and Policies Unit, Health Promotion Department, World Health Organization.

Email: eruiz@who.int.

2 Public Health Law and Policies Unit, Health Promotion Department, World Health Organization.

Email: hougendoblerd@who.int.

3 Public Health Law and Policies Unit, Health Promotion Department, World Health Organization.

4 Public Health Law and Policies Unit, Health Promotion Department, World Health Organization.

5 Public Health Law and Policies Unit, Health Promotion Department, World Health Organization.

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NCD prevention in COVID-19 litigation: What are the future implications

for NCDs and the law?

•

measures with an impact on NCD prevention, such asrestrictions on tobacco

products and alcoholic beverages;

•

measures aecting access to treatment for people living with NCDs, including

on grounds that their right to health has been violated; and

• measures aecting other aspects of the lives of people living with NCDs,

including their right to work and access to public insurance schemes.

This paper focuses on the rst category of measures and describes case law from

around the world where interventions addressing COVID-19 have aected NCD

prevention. The paper rst shows that these measures are relevant to the Caribbean

because of the increasing burden due to NCDs in the region and the adoption of

similar measures to those described in this paper during the COVID-19 pandemic

(Section 1).6 The paper then highlights two categories of cases:

• Some States adopted additional measures with the aim of contributing to

the prevention of NCDs during the COVID-19 pandemic, namely through

restrictions on tobacco products or alcoholic beverages (Section 2); and

• Some States adopted measures that had, as an unintended consequence,

a step back in existing NCD prevention measures, including through

closure of schools, sport facilities and community programs (Section 3).

In both cases, the Legislature, the Executive and/or the Judiciary played a role

in promoting or protecting NCD prevention through the COVID-19 response. The

case law frames and sheds light on a number of legal questions, such as what claims

for infringement of fundamental rights mean for the duties and powers States bear to

regulate NCD risk factors, under what circumstances an emergency might justify State

action on NCD risk factors, and what protections the population must be aorded

by States on NCD prevention, including in the context of an emergency. Important

lessons for health ocials with respect to due process, the type and conclusiveness

of evidence required, and the margin of discretion aorded to protect public health

may also be drawn from these legal challenges. While the answers to these questions

will not be the same in every jurisdiction, COVID-19 litigation gives new insights

into how countries may use the law to regulate NCD risk factors in the context

of an emergency. The validity of emergency measures aimed at addressing NCD

risk factors are assessed in some jurisdictions based on their objectives, rationality,

6 The Caribbean here is understood as comprising the 14 independent CARICOM Member

States (Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti,

Jamaica, Saint Lucia, St Kitts and Nevis, St Vincent and the Grenadines, Suriname, Trinidad

and Tobago). Other countries in the region are therefore excluded from the analysis of this paper.