In the previous chapter, it was established that states have obligations to protect children from unhealthy food marketing under the Convention on the Rights of the Child (CRC). However, the CRC is situated within a pluralist international legal regime under which states have ratified numerous international and regional treaties, not only human rights treaties that protect children’s rights or public health. Children’s rights therefore cannot be invoked in isolation. Treaties promoting economic aims, like free trade and economic integration, must also be respected when ensuring children’s rights. States’ freedom to protect child rights can thereby be constrained by regional and international law.

Because children’s rights are not monitored by an international court system, there is a risk that economic adjudication systems, like the World Trade Organization (WTO) or the Court of Justice of the European Union (CJEU), will make determinations related to children based on economic considerations and without analysis of their rights. Furthermore, children are not powerful economic actors and have limited means to bring legal cases to defend their rights and interests. This leads to tensions between human rights, public health and trade.

However, the picture is increasingly hopeful. A growing body of case law recognises states’ right to regulate for the purposes of public health. Jurisprudence also recognises children’s right to protection and health. This chapter therefore argues that well-drafted, non-discriminatory legislation, underpinned by evidence and the product of reflection on, inter alia, less restrictive alternatives, can be successfully defended against legal challenges. There is, however, room for children’s rights to be strengthened in decisions, particularly by the European Court of Human Rights (ECtHR) and the CJEU.

Potential challenges to food marketing restrictions can come from a number of sources of law and this chapter is therefore non-exhaustive. The goal is to underscore that while children’s rights are powerful, states must comply with potentially contradictory systems, and therefore regulations must be drafted in a manner that can withstand judicial scrutiny. The chapter focuses on three bodies: the ECtHR, the CJEU and the WTO. The analysis of case law is furthermore non-exhaustive but instead provides insights into the types of arguments, as well as losses and successes from public health and children’s rights perspectives. The main findings of the chapter are as follows.