Up close details of a dark soda in ice.

Why soda taxes, an awesome public health policy, are rare

By Daniel Aaron

This post is, in part, a response to a panel discussion on soda taxes and obesity, given by Professors Emily Broad Leib, Steven Gortmaker, and Carmel Shachar on February 14, 2020.

Diet is devastating the public’s health

Diet is the top cause of death and disability in the United States and abroad. Diet-related disease has been rising for forty years, and we cannot seem to control it. Currently 39.8% of Americans are obese. By 2030, this will climb to half of all Americans. Obesity causes numerous health risks, including heart attacks and strokes, and increases the risk of many different types of cancer.

As to diabetes, 9.4% of Americans currently have type II diabetes (the diet-related type), up from 1% fifty years ago. Few people outside the medical community understand the true horror of diabetes. People in the medical community know all too well that people with diabetes are slated for earlier death and are at risk for a host of complications, such as heart attacks, strokes, and amputated limbs. In fact, diabetes is considered a “coronary artery disease risk equivalent.” A technical medical term, this basically means that if you have diabetes, your risk of a heart attack is increased just as if you had heart disease. Diabetes essentially is heart disease (among all the other problems it causes).

Also, diet-related diseases disproportionately affect minorities, including Black and Hispanic people, as well as families with less money and less education. However, obesity very much affects all races and classes.

Why are we failing? Why are we leaving the largest cause of death unaddressed in the United States? That is the question I have sought to answer for many years.

In my life, I grappled with what weight meant, why my family was sick, and why there were no answers

I grew up with two parents eternally struggling with their weight. They tried every diet, suffering emotionally. My mom disliked seeing herself in mirrors. She wore black to hide her weight. One time she delighted over an old necklace of glistening triangles hanging from bitty metal links, tasseling it round her neck in preparation for a special occasion. She then mumbled under her breath that she hoped she didn’t look too heavy.

I, too, was overweight until puberty and began counting calories at age 10, eventually reaching normal weight due to a mix of vertical growth and diet. As I got older, my support for my parents’ weight loss didn’t help. Eventually I gave up, realizing they had given up too. My parents suffered several health problems tied to their weight.

Fast forward to medical school. We took a family road trip in a packed car to Boston, and I moved into a shiny new subsidized apartment building run by the Boston University School of Medicine. The next three years showed me a big lesson: medicine was not interested in why people were obese. Downstream consequences were emphasized: patients with heart attacks, liver failure, falls, bone fractures. And the solutions were easy, of course. Eat better! Exercise!

But I had a hypothesis: people were getting heavy because of the system. Junk food was constantly thrust in front of people, at low prices and easy availability. And this, I hypothesized, was due to the law. So I went to law school, with a dream of ending obesity.

A Contradiction: Soda taxes are effective, but rare

Through working with Professor Emily Broad Leib, I learned that soda taxes were evidence-based, effective, equality-promoting policies. Soda taxes, or more generally sugary drink taxes, increase the prices of sugary drinks. This causes people to consume less of them, which saves them money and health problems. It also raises money for important programs and services of our choice, such as children’s daycare or preschool, which can promote well-being and equality. Soda taxes are effective at reducing consumption.

However, only a handful of U.S. cities have enacted soda taxes, and no state has been able to create a state-wide tax. Soda taxes are “powerful, but underutilized,” according to public health professors Lawrence Gostin and Sarah Roache.

Where are the soda taxes? Their absence poses quite a contradiction. How can we say that human life is important while structuring our society without soda taxes or other meaningful interventions to reduce obesity?

Soda Taxes Face Large Opposition

Proposed soda taxes are generally met with resistance, backed by campaigns funded by companies that would lose revenue from a tax. The campaigns often use implications of race and class to suggest that soda taxes hurt vulnerable people, even though vulnerable groups are exposed to more junk food marketing, drink more soda and suffer more health consequences from it. For example, the American Beverage Association opposed a soda tax in Washington, D.C. by placing door-hangers on people’s doorknobs, which said

Why is the D.C. Council trying to raise our taxes again when we have a budget surplus? As housing costs continue to rise and people are forced out of their neighborhoods, this tax will hurt residents and working families who are already struggling to make ends meet.

Such language is disingenuous and obstructs racial health equality, but is generally effective. The food and beverage industry now spends more on advocacy and lobbying than the tobacco industry.

Another soda company strategy is to use state preemption to block local laws. For example, in 2018, the beverage industry (e.g., Coke and Pepsi) was disgruntled that four California cities had passed local soda taxes. Thus, the industry mounted a pressure campaign by introducing a compellingly worded state-wide ballot initiative that would hamper local tax authority and essentially remove local funds needed to furnish police, fire, and other public services. However, the industry said it would remove its initiative if the state passed a law blocking local soda taxes. The state agreed, and California, to protect essential municipal services, passed a law in 2018 stating that no California city can pass a soda tax for 12 years.

An Exercise of Power

Soda taxes are likely one of the most promising interventions to reduce obesity. They preserve “choice.” And yet they are incredibly hard to pass.

Soda taxes offer the dream of stopping people from falling into the river of illness. The medical system, it is said, pulls people from the river.  But why let them fall in at all? Why not tackle obesity upstream?

To avert illness we must swim upstream against power. This power is vested in people and companies committed to ensuring that Americans consume sugary drinks. And they used their power to structure our laws against health. We have not yet grappled as a society with how to challenge such power. With so many issues facing us, public health sometimes takes a back seat. But when we forget about public health, the death toll grows, life expectancy drops, disparities rise, and everyone loses. With half of America slated to be obese by 2030, worse for Black and Hispanic people, we need new ways of building power to support public health measures for everyone.

Daniel Aaron

Dr. Daniel Aaron grew up just outside of Boston. He graduated from Brown University and studied law and medicine between Harvard and Boston University. Dr. Aaron hopes to alleviate health injustice by studying the role of law and policy in creating and perpetuating disease. His research foci include food and drug law, obesity, opioids and related tort litigation, tobacco products, the intersections with racial health inequities, and constitutional health law. His research has been covered by the New York Times, CNN, Time Magazine, and others. Today, he is a Heyman Fellow at Harvard Law School, an attorney at the U.S. Food and Drug Administration, and a member of The Justice Initiative, a collaboration between Harvard Law School and Howard University School of Law aimed at building a community of lawyers and law students around racial justice. Publications: Tobacco Reborn: The Rise of E-Cigarettes and Regulatory Approaches, 25 LEWIS & CLARK L. REV. ___ (forthcoming 2021). Is Obesity a Manifestation of Systemic Racism? A Ten-Point Strategy for Study and Intervention, J. INTERNAL MEDICINE (2021). Ten years post-GAO assessment, FDA remains uninformed of potentially harmful GRAS substances in foods., CRITICAL REVS. OF FOOD SCIENCE & NUTRITION (2020). Constitutional Cohesion and the Right to Public Health, 53 MICHIGAN J. LAW REFORM 173 (2019). Sponsorship of national health organizations by two soda companies, 52 AM. J. PREVENTIVE MEDICINE 20 (2017). The Landscape of Genetic Variation in Dilated Cardiomyopathy as Surveyed by Clinical DNA Sequencing, 16 GENETICS IN MEDICINE 601 (2014). Nature Publishing Group.

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