Meet Kathy Shats, UNICEF's new legal specialist charged with guiding efforts to implement the Code

May 31 2021

This article is a part of our collection of features marking the 40th anniversary of the adoption of the International Code of the Marketing of Breastmilk Substitutes. Visit the Code landing page to learn more!

Kathy Shats
Kathy Shats

After obtaining degrees in genetics and law in her home country of Australia, Katherine Shats said she was always looking for a way to combine her passion for science with an equally strong interest in law. She found it in health law, working on issues of international trade and health at the Australian National University Law School and Medical School in 2007. “I wanted to work at the intersection of science and law and that’s basically what health law is,” she said. She then spent five years practicing antitrust law, human rights and refugee law before returning to focus health law by moving  to Washington, DC, in 2013 to earn her Master’s in Global Health Law at Georgetown University. For more than a decade, Shats has combined her passions at a variety of posts, most recently as associate legal director at the Global Health Advocacy Incubator.

badge blueNow at UNICEF, she will provide legal technical assistance to support the development of legal measures to address overweight and obesity, as well as on the implementation of the International Code of the Marketing of Breastmilk Substitutes, taking over for David Clark, who has retired after 25 years. Although busily preparing to move from the U.S. capital to UNICEF headquarters in New York City, she took time to discuss her career and talk about the new challenges she’ll be taking on.

Alive & Thrive: Tell us a bit about how you’ve arrived to this point – UNICEF legal specialist.

Katherine Shats: I've worked at the intersection of health and law for the past 14 or 15 years in various roles, taking a break to practice law doing anti-trust law and refugee law human rights. To get back into the global health law space, I left Australia and moved to Washington, DC, to do a masters in global health law at Georgetown University Law Center and that's really when I started becoming interested in non-communicable diseases in the law: tobacco, alcohol and unhealthy food regulation, which is a  growing field now. My interest is driven by the fact that a lot of the diseases caused by tobacco, alcohol and unhealthy foods, can be easily prevented. If you think about it in public health terms, the vectors for these types of chronic diseases are large corporations – the tobacco industry, large food manufacturers – and their conduct in pushing their products onto the public, including young children while opposing government regulation. This is something that as a society is much easier to prevent than other types of public health challenges, such as infectious diseases – where the vector of disease (such as a mosquito-borne pathogen) is much harder to contain. And the law is a very powerful tool we have to be able to do just that.

These kind of legal measures are an easy way to protect a population: we know which measures work, that they are relatively simple and cheap for a government to enact and implement, and that you can often see results quite quickly. It’s inspiring to work in a field where you can help to pass a law and watch the public health outcomes play out.

Alive & Thrive: But actually getting those laws passed is not easy.

Kathy Shats presentsKatherine Shats: It's very challenging because you're facing a lot of opposition from the private sector who are very, very powerful, often much more powerful than even the governments themselves in terms of money and lobbying tactics, let alone the civil society organizations. For the last about five years, I’ve worked with civil society, supporting in-country partners around the world in drafting and advocating for and implementing laws in tobacco control and to regulate unhealthy foods.

I’m coming to UNICEF from an organization called the Global Health Advocacy Incubator, which is part of a larger organization called the Campaign for Tobacco Free Kids, a large tobacco control NGO that's been around for over 25 years.

Alive & Thrive: Your background in genetics has an apt connection to working on the BMS Code – it deals with a code, too. Can you comment a bit on your scientific background and the public policy outcome the BMS Code seeks to achieve?

"It’s inspiring to work in a field where you can help to pass a law and watch the public health outcomes play out."

Katherine Shats: Taking your analogy of genetics and the Code, the first thing that came to mind was that nature is much better at implementation than governments are. Very simply, the genetic code is just the backbone that tells you what to do – but then it needs to be transcribed and then you get proteins that actually implement what the code says, which is perhaps where we could strengthen the BMS Code, if we're using that analogy. As a lawyer, I always say, you can't think about implementation and enforcement after you've passed the law – you have to think about it right from the beginning and actually build those mechanisms into the law itself. I’ve found that when public health laws don't work well or aren't implemented, often the lack of political will is blamed. But more often than not, it's because many of these factors about how the law should work weren't considered right from the beginning and weren't built into the law itself: Who would implement it? Where would the resources come from – which agencies, for example, need to work together to implement it? Do they have the legal authority to do that? Do you need to write that into the law? Are there timelines? A lot of these issues can and should be considered from the beginning.

Alive & Thrive: Implementation of the Code in various countries is most certainly a challenge, particularly monitoring and enforcement. What would you say needs to be done? 

Katherine Shats: One thing to note is that this certainly isn't a problem unique to the Code. This happens in many other areas of public health – there are different reasons depending on the country. But the biggest one is most often opposition from the industry – because ultimately these laws are trying to regulate an industry who wants to enter a market and sell more of its products, so you see strong opposition right from the beginning. Often, they manage to get a seat at the policy making table and can weaken the laws in such a way that then makes them difficult to implement. Certainly, there's industry interference all the way through the process – from how the law is written, to political opposition to its passage, how it's implemented and sometimes how it's interpreted by the courts. Certainly, that's one of the biggest challenges.

Other times it is political will, reflected often in lack of government resources. Public health may not a priority or the passage of the law may have been a political promise and is considered a win once the law is on the books, so there isn't as much interest in implementation and enforcement. It may also be a lack of resources or, as I mentioned, key enforcement mechanisms weren't really built into the law in the first place or the right people who would be in charge of enforcing and implementing weren't consulted. These are common problems you see across the board – it’s certainly not unique to this issue. You see this especially when there are powerful industries opposing the laws.

Alive & Thrive: What are some other ways advocates can use to drive their policy advocacy at the country level? Some have suggested using human rights to frame the debate.

"This is a relatively simple straightforward intervention that is preventative and that down the line saves so many lives and so much money...."

Katherine Shats: I think the human rights aspect is very important because there have been quite a lot of strong human rights statements, either from specific treaty bodies or from special rapporteurs on certain rights or various other commissions or bodies that have recognized breastfeeding as a human right – not just of the mother but also the child. More importantly, they have specifically said that it's a requirement for governments to protect the population from interference by corporate interests, for example by restricting marketing. Human rights arguments have more traction in some regions than others. In Latin America, for example, they've been very powerful. But there are parts of the world that just don't respond to human rights at all – the U.S. is a prime example. The other really strong argument is simply that this is a relatively simple straightforward intervention that is preventative and that down the line saves so many lives and so much money. You can quantify it economically – that’s an argument that appeals in some contexts: it's just much cheaper to approach it from a prevention point of view than to then address the chronic diseases that are much more likely to occur later.

Alive & Thrive: You’ve worked extensively on efforts to limit marketing of tobacco products. Are there some lessons from that work you will bring to your new role?

Katherine Shats: Absolutely, there are many parallels. The tobacco industry is an opponent that has used all of the dirtiest tactics for such a long time and that's actually exactly what the big food companies, which are often the same as the BMS manufacturers, are doing. They’re all using the same playbook as the tobacco industry – undermining the science, funding their own science that's perhaps not fraudulent but inaccurate – and certainly using legal threats and targeting vulnerable populations. In the tobacco control space, there's outright bribery and other types of threats. Even in the big food space, some of the civil society advocates on the ground in countries have been physically threatened, phones have been tapped, advocates have been followed just for speaking about the harms of sugar. So, I’m certainly very familiar with what some of these very powerful players opposing these measures can do. And yet you see wins because at the end of the day the public health argument is just so strong, and people know that and governments know that. At the end of the day, it's about saving lives and knowing that these interventions can save lives and can prevent a lot of chronic disease. I think it's just having faith that in the end that message does come through.

Alive & Thrive: Are there other specific lessons from your previous work?

Katherine Shats: I think it's essentially about providing support to countries on the ground. A major focus will be helping to draft strong laws that are legally sound and when challenged will stand up to scrutiny. We also need to dispel industry arguments: the industry often makes a lot of legal threats or international trade law threats, which put countries off from moving forward even though they're actually unfounded. So, making sure that there's an understanding about how to counter those arguments and how to be able to draft strong laws. Also, I think partnering with other organizations, other multilaterals like WHO and also civil society groups that have been working in this space for such a long time. At the end of the day, the most powerful way to make change is through country level policy advocacy campaigns – that’s how laws get passed.

Alive & Thrive: The Code is now 40 years old and some are frankly discouraged that around the world, BMS marketing seems to be hiding in plain sight – it’s everywhere. What keeps you passionate about doing this work?

Katherine Shats: For me, it’s seeing the progress that that has been made – the number of countries that have passed strong laws, the recognition through the World Health Assembly resolutions to strengthen the Code.. At the same time, I'm appalled at how so many of these companies are still blatantly disregarding the Code and targeting women all around the world at the most challenging time of their lives and trying to mislead them for profit. Especially  when we have so much research and evidence now showing that when women are presented with an informed choice, so many more women who are able to, choose to breastfeed.

Alive & Thrive: As we mark the 40th anniversary, what is your message for advocates?

Katherine Shats: Keep fighting the fight. It’s going to be an ongoing battle but with many wins along the way. Ultimately, it's about working hard to convince each government to pass the laws. Policy advocacy and partnering with local advocates on the ground in the countries, combined with the Code  and subsequent WHA resolutions is the way to do that. Once you get a law passed, it can make all the difference . We’ve seen that – we have the evidence. It's just about continuing to do that work.

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