Table 3.

General interaction of marketing restriction policy with trade and/or investment agreements

Type of trade and/or investment agreement	Relationship with the restriction of marketing and advertising of unhealthy food and beverages to children, as perceived by expert informants
International investment agreements (IIA), including bilateral investment treaties (BITs), and investment chapters of TIA	IIA specifically cover investments and investor protections. These could theoretically be invoked if an imposed regulation implies mistreatment of an investor (fair and equitable treatment), or a significant devaluation (indirect expropriation) of an investment. Brand advertising in particular relates to investments in trademarks. While literature on IIA and nutrition policy space is sparse, certain scholars have expressed concern that marketing restrictions implying any devaluation of an investor’s investments (i.e. through decreased sales) could be argued to amount to indirect expropriation(31,59–61)., though participants were sceptical of the likelihood of an actual challenge (P4, P5, P6, P7, P8, P9)
General Agreement on Trade in Services (GATS)	The GATS pertains to trade in services – including audiovisual services (e.g. TV advertising), computer services (e.g. Google) and food retail or restaurant services. Different countries have made different commitments with respect to their service sectors and for modes of service supply within those (i.e. for cross-border supply, consumption abroad, commercial presence, and/or presence of natural persons) in relation to rules on market access and national treatment. The GATS may therefore come into play in cases where a country has made specific commitments, regarding market access for example, in advertising services.(P1, P5, P7, P8) While difficult to determine the exact number of countries that have scheduled commitments for advertising due to overlapping classifications of relevant sectors and subsectors, one participant estimated the number at about 70,(P7) and another at 60.(P5) The GATS rules relating to domestic regulations (including the obligation of a Necessity test) are currently the subject of ongoing negotiations.
General Agreement on Tariffs and Trade (GATT)	The GATT covers trade in goods, and thus comes into play if marketing restriction regulations will have an effect on trade in goods (i.e. on the producers of the products whose advertising or marketing will be restricted), with the relevant rules being non-discrimination (‘national treatment’ and ‘most favoured nation’), and quantitative restrictions.(P1, P2, P7, P9)
Agreement on Technical Barriers to Trade (WTO TBT)	The WTO TBT Agreement pertains to technical regulations relating to goods, including product formulation and labelling, and therefore comes into play due to the technical regulations underpinning restrictions on marketing. Its emphasis is on requiring that such technical regulations do not present ‘unnecessary’ barriers to trade.(P1, P7, P9)
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)	The TRIPS Agreement covers intellectual property rights, including trademarks such as logos and licensed characters or images, and would therefore be relevant if the marketing restrictions target any of these elements.(P1, P3, P5, P7, P8, P9)
Non-WTO Free trade and investment agreements (FTIA)	Other FTIA (e.g. the CER, TPP/CPTPP) cover the same types of chapters as the WTO agreements, but tend to include tighter restrictions, i.e. ‘WTO-plus’ e.g. TRIPS-plus, TBT-plus. They may also include additional chapters of potential relevance to restrictions on marketing unhealthy products to children, such as: Regulatory coherence, Transparency, eCommerce*, and Cross-border Services.(P1, P5, P7, P8, P9)
Customs Unions	Customs Unions, such as the European Communities (EC), may have their own specific internal rules and restrictions on policy that could limit the range and scope of policy options for restricting marketing of unhealthy food and beverages to children, for example commitments to free movement of goods and services across borders.(P1)

^*Electronic commerce and digital trade agreement rules have been gaining prominence, with potentially serious implications for policy space to regulate marketing in the digital age⁽⁶²⁾. However, their discussion was outside the scope of the current study.