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University of Miami Business Law Review

Tyler Rauh

Document Type

Comment

Abstract

American waistlines are an international punchline, and United States taxpayers spend hundreds of billions of dollars each year to combat medical complications resulting from obesity. The personal costs are financial, emotional, and mortal. Projections insist that it will become worse. Section I details the obesity epidemic and ponders why the United States is uniquely unhealthy.

The reason could be that America consumes more sugar than any other country. In recent years, some municipal policymakers have attempted to restrain America’s sweet tooth by taxing sugar-sweetened beverages. Initial responses are polarizing. Chicago’s tax did not last three months before its abolishment. Philadelphia’s tax raised over sixty-five million dollars in its first ten months, but public opinion skews negative. The health effects, however, have been positive. Section II analyzes the benefits and concerns regarding these sugar-sweetened beverage taxes, and it will compare approaches in other countries that may be more effective at reducing obesity.

Mandated disclosures, including nutritional panels and warnings, are another tactic legislators have used to combat the epidemic. San Francisco took an inspired approach to battling sugar consumption by mandating a disclosure on print advertisements for sugar-sweetened beverages: “WARNING: drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The American Beverage Association met the ordinance with a First Amendment challenge. It convinced a Ninth Circuit panel that the message chills commercial speech by forcing its members to convey a controversial message and imposing an undue burden on beverage manufacturers because non-beverage sugar producers arbitrarily escape the ordinance’s purview. In an en banc rehearing, the Ninth Circuit confirmed reversal, but it did so only on the ground that the size of the warning was unduly burdensome. The judges disagreed on many issues in reaching that conclusion. Section III assesses the freedom of speech claim and finds that the Ninth Circuit panel may have reached its conclusion based on biased or flawed research.

Although the panel decision hinted that policymakers’ options for fighting the obesity epidemic are limited, sugar taxes and mandatory disclosures can still be effective if correctly implemented. Section IV concludes with a proposal for extensive sugar taxes and warnings, similar to the tobacco strategy in recent decades, so that consumers have more knowledge about what they are ingesting while being financially incentivized to choose healthier options.

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