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

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

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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

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

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

  1. 1. Emily M. Broad Leib Policies to Reduce Sugar Consumption: The Battleground
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 17. flpc@law.harvard.edu www.chlpi.org/flpc @HarvardFLPC

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