February 14, 2020 On February 14, 2020, Harvard Medical School Center for Bioethics and the Program on Regulation, Therapeutics, and Law (PORTAL) at Brigham and Women's Hospital, in collaboration with the Petrie-Flom Center hosted the monthly health policy consortium on sugar-sweetened beverage excise taxes. In recent years, some cities have tried to impose soda taxes and other new policies to reduce the obesity epidemic in the US—particularly among children—and its critical impact on society and the health care system. How effective are these policies? What is blocking their uptake? What alternatives should we consider? For more information visit our website at: https://petrieflom.law.harvard.edu/events/details/soda-taxes-and-other-policy-responses-to-the-american-obesity-epidemic

1. Emily M. Broad Leib
Policies to Reduce Sugar
Consumption:
The Battleground

2. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 2
• Offer legal and policy advice to
nonprofits, government agencies,
entrepreneurs, and other
organizations on a range of food
policy questions.
• Educate students about the role of
law and policy in the food system.
About the Food Law and Policy Clinic

3. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 3
• Diet is the most significant factor for disability and premature death in the U.S.
• Nearly 10% of American suffer from diabetes and 1/3 of the population is pre-
diabetic compared with less than 1% just fifty years ago.
• Healthcare costs related to obesity exceed $200 billion per year; for diabetes they
exceed $300 billion per year
• CDC estimated that preventable diseases, such as diabetes, account for
approximately 75% of total healthcare spending in the U.S
The health situation is dire…

4. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 4
• World Health Organization (WHO) and USDA recommend no more
than 10% of daily calories from added sugar… yet currently 15%
comes from added sugar
• The average American consumes 17 teaspoons of sugar daily and
about 57 pounds of added sugar a year.
• Drinking 2 sodas a day caused a 29% higher risk of death for men
and a 63% higher risk of death for women.
• Nearly 50% of added sugars in the American diet are from sugar
sweetened beverages.
Why sugar?

5. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 5
Provide direct technical assistance to 8 community partners over 3 years
1. Research and test state and local policies to reduce sugar consumption and
develop strategies for adoption
2. Engage with federal-level policy-making
3. Disseminate ideas through convening and toolkit
ARCS project
Thanks to ARCS Team members: Melissa Shapiro, Sarah Downer,
Erika Dunyak, Katie Garfield, Kristin Sukys

6. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 6
• Examples: Philadelphia, Berkeley, Boulder, and Seattle
• Goals and impacts of SSB taxes:
– Raise revenue:
• Philadelphia (1.5 cent/oz): has raised more than
$70 million in revenue per year
– Decrease SSB consumption:
• Berkeley (1 cent/oz) saw consumption of SSBs drop
52% among low-income residents
Sugar-Sweetened Beverage (SSB) Tax

7. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 7
• Each state/locality needs to find the right fit for their needs and local authority
– What type of tax?
– Who is being taxed (manufacturer, distributor, consumer)?
– What products to include or exclude (e.g. diet soda)?
– Any exemptions (ie, distributors under a certain size)?
– What is the tax base (volume, sugar content, tiered)
– What is the tax rate?
– Where to put the revenue?
SSB Tax: policy considerations
SSB Tax is the gold standard for many of our ARCS site partners
BUT, also very controversial and faces an uphill battle

8. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 8
SSB Tax Pushback
Common arguments beforehand…
• Obesity is a complex problem
• Interferes with individual choice
• Regressive
• Consumers will get SSBs elsewhere &
locality will lose money
• Impacts SSB employment
And even if you get one passed…
Cook County passed SSB tax (2016) and soon after
repealed it because of political blowback

9. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 9
Photo Credit Washington Policy Center, January 2018 at a Seattle Costco

10. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 10
Williams v. City of Philadelphia (2018)
• Arguments:
– Preempted by the state’s existing sales tax
– Violates SNAP because charges a tax on SNAP recipients
– Violates the Uniformity Clause of the Pennsylvania Constitution
Illinois Retail Merchants Association v. Cook County Dep’t of Revenue (2017)
• Arguments:
– Violates the Uniformity Clause of the Illinois Constitution because applies to pre-
sweetened drinks but not on-demand custom sweetened drinks
– unconstitutionally vague
SSB Tax Litigation

11. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 11
Other State/Local
Sugar-Reduction
Policies
Soda Portion Caps
Warning Labels
Healthy Default
Healthy Retail
Healthy Vending
Menu Labels
Public Awareness Campaigns

12. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 12
Litigation Theory: Lack of Authority/Sep’n of Power
Williams v. City of Philadelphia (mentioned above)
• Argument: Lack of local authority because preempted by state sales tax
NY Statewide Coalition of Hispanic Chambers of Commerce v. NY Dept of
Health and Mental Hygiene (2014)
• Argument: Board of Health does not have the authority to enact soda portion
cap rule because it is a policy decision that only the City Council has authority
to make

13. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 13
Litigation Theory: Arbitrary/Capricious
NY Statewide Coalition of Hispanic Chambers of Commerce v. NY Dept of
Health and Mental Hygiene (2014) [mentioned above]
• Argued that the soda portion cap was “arbitrary and capricious” or did not
pass the basic level of rational review because only impacted certain
businesses

14. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 14
American Bev. Ass’n v. San Francisco (9th Cir 2019)
• SF soda warning infringes on constitutionally
protected free speech by requiring speech that is
unduly burdensome
– The warning might be OK if it were smaller (ie,
10% instead of 20% of the billboard)
– Some justices felt that the warning was not
“factual and uncontroversial”
• First amendment has been becoming more
protective of companies the past few decades
San Francisco just passed amended warning label
Litigation Theory: First Amendment

15. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 15
• Preemption = higher government passes laws that limits or eliminates power of
lower government to take certain action
• Usually occurs between states and local level for food law and policy
Could be a pre-existing lack of local authority
Or could be passed specifically to preempt:
- SSB Taxes – eg. Arizona, California, Michigan, and Washington preempt
- local regulation of consumer incentive items – eg. Ohio, Mississippi, Arizona
- Local regulation of portion sizes – eg. Mississippi, Wisconsin, North Carolina
Preemption

16. HARVARD LAW SCHOOL FOOD LAW AND POLICY CLINIC FACEBOOK/TWITTER/INSTAGRAM: @HARVARDFLPC 16
Step 1: Policy Target
Ask: Where or Who do
you want to act
Grocery stores, restaurants
and other soda retailers
Step 2: Policy Action
Ask: What action do you
want your target(s) to take?
Make SSB’s less available to
consumers
Step 3: Policy Levers
Ask: How will you cause that
reaction?
Tax incentive to restaurants that
eliminate SSB’s from the menu
Innovating in the sugar policy space

17. flpc@law.harvard.edu
www.chlpi.org/flpc
@HarvardFLPC