soda tax
8/16 maybe redundant, see beverage
also warning label
this may concentrate on const rights
roderigues strats
see diabetes/insulin:
even more belated insulin epipen? extraction/ extortion bribery scheme
disaster capitalism adjacent: food desert ej kids of color epidemic; corps gun to head CA legis to prevent soda tax (to slow consumption and offset massive costs to taxpayers)
no lnx many twt
50K pharma 2021?
'How did you get elected?': Twitter hammers hypocritical GOP 'outrage clown' for opposing insulin price cap
Brandon Gage April 01, 2022
The United States House of Representatives on Thursday evening passed legislation that would cap the cost of insulin at $35 per month, ensuring that diabetic Americans are never denied access to the life-saving medication due to price. The stand-alone measure was originally included in President Joe Biden's Build Back Better Act, which died in the Senate earlier this year.
"Experts say it costs less than $10 a vial to manufacture, yet there are still American families with insurance paying hundreds of dollars per vial of insulin. Currently, costs for patients can range from $334 to $1,000 a month for insulin,according to a 2020 Kaiser Family Foundation report," ABC News reported.
"The bill caps cost-sharing for a month's supply of insulin starting in 2023 at whichever amount is lower: $35, or 25% of a plan's negotiated price, according to the bill's text," the outlet added. "The bill does not lower the overall price of insulin; it would likely shift more of the cost onto insurers and employers."
The vote was a bipartisan 232-193, with 12 Republicans joining a united Democratic majority. The bill now heads to the Senate.
Among the dissenters in the GOP's right-wing caucus was House Energy and Commerce Committee ranking member Cathy McMorris Rodgers, who represents Washington State's 5th Congressional District. Rodgers, a staunch social conservative, complained during a speech on the House floor that protecting patients by lowering their prescription drug costs is a bad thing. The 9th-term lawmaker also wondered what other essential consumer products could be on the government's watchlist.
"Today, it's the government fixing the price on insulin. What's next? Gas? Food? History tells us that price-fixing doesn't work," she said.
Watch below:
In addition to McMorris Rodgers' apparent aversion to preventing people from dying from lack of access to necessary treatments, Twitter pointed out that her hypocrisy on the topic of "price-fixing" was on full display.
As a member of Congress, McMorris Rodgers has exclusive access to the very best taxpayer-funded healthcare [disabled kid]. But her attitude toward her constituents is straight-up indifference.
Follow the money.[pharma and lobbyists]
MAHA BS RFK2
AN 4 25
While Republicans throughout the United States are intensifying efforts to regulate soda, lawmakers in Texas, Arkansas, West Virginia, Idaho, Nebraska, Michigan, Arizona, and South Carolina have reportedly declined to support a ban on the drink. However, they are aligned with businessman Michael Bloomberg's other initiatives: banning the purchase of soda with food stamps, formally known as the Supplemental Nutrition Assistance Program (SNAP).
An article in the Atlantic by Nicholas Florko published on Tuesday noted that these states are taking cues from Health and Human Services Secretary Robert F. Kennedy Jr., who has expressed strong opposition to allowing low-income Americans on SNAP to use government funds to buy soda.
"The soda wars have long broken along partisan lines. New York City’s ban was struck down in court before it could go into effect, but even more modest attempts to regulate soda have been concentrated in deeply blue cities such as Berkeley and San Francisco. Liberals drink soda too, of course, though the drink’s biggest defenders are on the right. President Donald Trump loves Diet Coke so much that in both of his terms, he’s had a button installed in the Oval Office to summon a refill; on the campaign trail, now–Vice President J. D. Vance claimed that Democrats see Diet Mountain Dew, his drink of choice, as 'racist,'" the article reads.
ALSO READ: 'You own this': Top GOP senator who backed RFK Jr. now under attack after HHS mass firings
"The federal government’s own research has shown that Americans who receive food stamps have worse diets than nonparticipants with similar incomes, and soda is surely part of that problem. These proposed bans should be even more palatable because they wouldn’t be permanent; they are pilot programs to try out the idea."
Overall, Democrats largely continue to stand against soda bans, the article notes. In both Idaho and Arizona, no Democratic legislators in the state Senates supported the proposed measures in their states. To effectively address soda consumption in the U.S., initiatives like these will need to be included in the solution, the author said.
He further pointed out that the Republican Party’s "about-face on soda" is more stark in West Virginia.
"In July, the state removed its soda tax. And now, less than a year later, it is pushing forward with a SNAP soda ban as part of an effort to decrease consumption of 'ultra-processed crap that barely qualifies as food,' Republican Governor Patrick Morrisey said late last month," the article notes.
ALSO READ:A deadly mosquito-borne illness is rising in the US as Trump cuts health funding
Many seasoned advocates against soda express skepticism about Republicans' motives. Marion Nestle, a professor emeritus at NYU and the author of Soda Politics: Taking on Big Soda (And Winning), has supported bans on soda within the SNAP program. She told the Atlantic that she views the current Republican initiatives as a disguise for their true aim, which is to reduce SNAP funding. Nestle added that while soda is detrimental to health, restricting food stamps also poses risks and that research indicates that the program greatly alleviates food insecurity and lowers healthcare expenses.
Supporters of the soda ban emphasize that the official name of the food-stamp program is the Supplemental Nutrition Assistance Program, highlighting that a two-liter bottle of Pepsi does not contribute to nutritional assistance. However, public health and anti-hunger advocates contend that any food is better than having no food at all.
==
looks like bloomberg maTCHED aba 1.3$M BUT lost; rio grand dfn stinktank helped by goldwater inst az, reveal donors false = to NAACP [coca cola corp = NYT corp? richmond fake paper]
legit
https://www.courthousenews.com/en-banc-9th-circuit-grills-san-francisco-on-soda-warning-label-law/
9/18
AN FRANCISCO (CN) – An expanded panel of Ninth Circuit judges on Tuesday reconsidered whether a San Francisco law requiring warning labels on billboard ads for soda passes constitutional muster, with the soda industry arguing that singling out sodas and other sugary drinks as the main contributor to health problems sends a misleading message to consumers.
“Obesity and related conditions are serious health problems. The city is entitled to have and share its view that drinking beverages with added sugar contributes to these conditions more so than consuming equivalent calories from other foods and beverages,” said industry attorney Richard Bress. “What the city can’t do, consistent with the First Amendment, is force us to convey its controversial view and that’s exactly what the city is doing here with this warning, by singling out advertisements for beverages with added sugar.”
A year ago, a three-judge Ninth Circuit panel ruled in favor of the American Beverage Association, the California Retailers Association and the California State Outdoor Advertising Association, finding San Francisco’s 2015 ordinance requiring warning labels on outdoor soda ads “unduly burdened and chilled protected speech.”
The ordinance would have required a black-box warning label saying: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” The label would have to cover at least 20 percent of the ad space.
U.S. Circuit Judge Susan Graber questioned why it matters whether soda is being singled out it does contribute to health conditions like obesity.
“If you have a dangerous ladder the answer isn’t to say ‘hammers are dangerous too,’ it’s a question of is the health warning accurate as to this product. There is nothing that suggests it’s more or different, just that it is,” she said.
Bress said it matters if consumers see the warnings and believe sodas are as dangerous to their health as cigarettes, when pretty much anything a person eats or drinks that contains calories and sugar can contribute to obesity and diabetes if consumed to excess.
“How do we know what the consumer’s view is?” asked U.S. Circuit Judge Marsha Berzon. “My intuition is the consumer will understand that this a generic public health statement, that in an aggregate sense drinking a fair amount of this can cause a problem.”
Bress said, “There are statements that are intrinsically misleading. Ultimately the burden to demonstrate that this warning is purely factual and non-controversial is on the city.”
He added, “The city is trying to address a more complex problem here, which is overconsumption of calories in society, and yes, the part these products play in that overconsumption. I don’t think that you can address that in a constitutional way by requiring warnings on only one product. Inevitably, you are going to be sending misleading messages by doing that.”
The U.S. Supreme Court’s decision this year to strike down a California law requiring faith-based pregnancy clinics to advertise information about abortions has added a new wrinkle to state-mandated commercial speech.
The high court found the law challenged in National Institute for Life Advocates v. Becerra to be unduly burdensome. It also upheld the preeminent standard of review for commercial speech under Zauderer v. Office of Disciplinary Counsel of Supreme Court, which mandates that required disclosures be purely factual and noncontroversial. The court said the mandated disclosure in the California law was controversial since it referred to abortion.
The 11-judge Ninth Circuit panel seemed to consider the soda warning case in light of that ruling, grilling Deputy City Attorney Jeremy Goldman on the warning’s accuracy.
Goldman said it would be an “unreasonable inference” for every single person to see the warning and assume they will become obese and get diabetes just from drinking soda. U.S. Circuit Judge Morgan Christen asked Goldman why.
“If the Supreme Court said it has to be purely factual and your warning doesn’t say ‘can contribute,’ it says ‘contributes to,’ why is their position unreasonable?” Christen asked.
Goldman noted cigarettes are known to cause cancer, but not every person who smokes cigarettes gets cancer.
“Here’s the tension for me,” Christen said. “On one hand it seems a reasonable person looking at this warning would understand this warning to be on an epidemiological, community-wide basis. But there is indication in the record that part of the problem with public health warnings is that the public has a low level of health literacy.”
Chief Circuit Judge Sidney Thomas also questioned the notice’s accuracy.
“I don’t think anyone disputes that Type 1 diabetes is not affected by added sugar consumption. Yet your notice blends all of them together. Why isn’t that inaccurate?”
Goldman answered, “It’s hard to see that that inaccuracy matters to anyone, that it’s a concern for anyone.”
Thomas pushed back, saying a danger warning on sugary drinks could deter someone with Type 1 diabetes from ingesting something that could be lifesaving.
“I think if you knew more about the Type 1 and Type 2 diabetic community, you would know that for Type 1 diabetics, the implication that their disease is caused by sugar is really a problem for them. So you are requiring the dissemination of misleading information,” Thomas said. “If your information is inaccurate, you’ve failed the test.”
Berzon said, “What bothers me the most is we’re speculating about how someone would understand this warning.”
Goldman acknowledged this is a problem, but said it shouldn’t be the reason for striking down the law.
“I don’t think you’ll get away from the problem that different people can understand it in different ways,” Goldman said. “That is always going to be the case of any warning message. That’s why the primary inquiry has to be a textual one.”
As for whether the ordinance is a burden for business, U.S. Circuit Judge Andrew Hurwitz asked Goldman to justify the size of the label, which was designed to be the same size as tobacco warnings.
“I’m looking at the exhibit, and it sure looks burdensome. It takes over a lot of the adverting space,” Hurwitz said.
Goldman said it has nothing to do with the product itself, but the necessary size to convey the warning.
“Congress came to the conclusion that smaller warnings are too easily overlooked,” he said.
Hurwitz wondered whether cigarettes and soda are on equal footing in the danger department.
“Is there a difference with respect to the seriousness, and the immediacy and the scientific proof of the problem. Can all warnings be the same size as the tobacco warnings?” he asked.
“It just has to do with information processing,” Goldman replied. “What is necessary to convey health information to the public.”
Hurwitz asked, “So it cannot be unduly burdensome in your view, if the evidence shows that’s what is required to convey the information?” Goldman agreed.
“Otherwise you’d be saying the government is justified in requiring a warning, but it cannot actually require a warning that people notice. That would accomplish nothing,” he said. “So once you say the government can justifiably require a warning, it seems to me that you have to accept it’s not an undue burden if the warning has to appear in a form that the message is actually conveyed to people. Not greater than is necessary, but if there is an evidence- based determination that this is the size that is necessary to convey that information. But I do think it’s not an undue burden.”
Bress challenged that on rebuttal.
“The Supreme Court said the standard is ‘no broader than is reasonably necessary.’ There is no evidence in this case that the city actually took that approach,” he said. “There is no sense in the record that the city ever asked the question if something smaller would work.”
The judges took the case under submission.
Ninth Circuit to Rehear Fight Over Soda Ad Warning LabelsJanuary 29, 2018In "Appeals"
San Francisco Bid for Warning Labels on Soda Ads BlockedSeptember 19, 2017In "Appeals"
9th Circuit Takes Up Soda Warning-Label FightApril 17, 2017In "Appeals"
sjr 19 2014
https://www.congress.gov/congressional-report/113th-congress/senate-report/223/1
... Corporate entities, drawing upon million-dollar and
billion-dollar treasuries to advance their corporate interests
and enhance their bottom-line, now have the capacity to drown
out the voices of hardworking Americans in Federal elections.
This unfettered corporate money released by Citizens United can
perhaps have the greatest impact and disproportionately high
return on investment for corporations in State and local
elections. One prominent example of this phenomena occurred in
Richmond, California last year.
After the mayor and city council sought to limit pollution
and demand higher safety standards at a Chevron refinery in the
town,\101\ Chevron poured $1.6 million into a Super PAC during
the 2012 city council race, defeating two council candidates
who supported the efforts.\102\
In addition to corporate
spending in the council races, almost $2.7 million was spent by
the American Beverage Association, Cinemark INC, and Regal
Entertainment to fund a campaign against a ballot measure that
would have taxed sugar-sweetened beverages.\103\
As a result,
campaigns in Richmond spent at least $40 per resident in the
2012 election.\104\ While $1.4 million was a drop in the bucket
for a billion-dollar company like Chevron, ordinary Richmond
residents were bombarded with the highest election expenditure
in the city's history.\105\
---
\101\Tawanda Kanhema, Citizens Outspent: Inside Richmond's $4m
Election Campaign, Richmond Confidential, Nov. 5, 2012, available at
http://richmondconfidential.org/2012/11/05/citizens-outspent-inside\-
richmonds-4m-election-campaign/.
\102\John Geluardi, Stephen Hobbs, et al., Election recap: Voters
seek familiar faces, Richmond Confidential, Nov. 8, 2012, available at
http://richmondconfidential.org/2012/11/08/election-recap-voters-seek\-
familiar-faces.
\103\See Kanhema, supra note 101; Geluardi, supra note 102.
\104\Kanhema, supra note 101.
\105\Id.
---
Corporations, of course, are not alone in their desire to
use their financial largess to influence the elections and
public policies impacting their interests. Citizens United and
its progeny have also given rise to an elite class of wealthy,
mega-donors who exercise tremendous influence on elections.
For the millionaires and billionaires hoping to expand
their influence on elections, the Supreme Court's decision in
McCutcheon v. FEC is the gift that keeps on giving. McCutcheon
eliminated the $123,200 aggregate, per cycle cap on individual
donations to Federal candidates, PACs, and parties. Now,
wealthy donors can give as much as $3.5 million each cycle to
all candidates, parties, and PACs.\106\ Those separate
donations can be transferred between and coordinated by the
groups, allowing donors to circumvent limits on donations to a
particular candidate or party....https://en.wikipedia.org/wiki/Sugary_drink_tax 920
...
Design
Tax design approaches include direct taxes on the product and indirect taxes. Indirect taxes include import/export taxes on sugar or other ingredients before it has been processed and local/regional.international taxes.[5] Sales tax (indirect tax) is paid by the person consuming the item at the time of purchase and collected by the government from the seller. VAT (value added tax) is the most common type of tax and is also added on at the time of purchase, at an amount that is dependent on the value paid for the item. The amount of both VAT and sales tax are directly proportional to the amount of money paid for an item and do not consider the volume of food or drink.[5] For this reason, a large (bulk) item would have less tax compared to a smaller cheaper item (i.e., there is less tax impact on larger packages of a food item).[5]
Most taxes on sugar-sweetened beverages (SSBs) are set volumetrically (i.e., with a constant rate per unit volume), and that "only three SSB taxes worldwide are proportional to sugar content."[7] The study argued that such volumetric taxes "are poorly targeted to the actual health harms from SSBs," and suggested taxing the amount of sugar in beverages, rather than the volume of liquid accompanying the sugar. A design change such as this has been proposed to "boost a SSB tax's health benefits and overall economic gains by roughly 30%."[7]
Increased taxes on sweetened products have been suggested to promote companies to re-formulate their product in order to keep consumer costs affordable by decreasing use of the taxed ingredient (i.e., sugar) in their product.[5] Government revenues from these taxes sometimes are put towards improving public health services, however this is not always the case.[5]
Arguments against the sugary drinks tax
- The criteria on what drinks are taxed may not include equally bad substitutes like fruit juice, energy-dense snacks and biscuits.[8]
- The tax is regressive since consumers on lower incomes will be more negatively impacted by higher prices than consumers on higher incomes.[8] This regressive effect of the sugary drinks tax can be counteracted if the collected tax revenue is used to subsidize healthier foods.[9]
- Cross-border shopping can also be an easy way out for consumers to not pay the tax as they will buy sugary drinks from areas where they are not taxed.[8]
Health concerns related to excess sugar in the diet
Type II diabetes is a growing health concern in many developed and developing countries around the world, with 1.6 million deaths directly due to this disease in 2015 alone.[10] Unlike sugar from food, the sugar from drinks enters the body so quickly that it can overload the pancreas and the liver, leading to diabetes and heart disease over time.[11] A 2010 study said that consuming one to two sugary drinks a day increases your risk of developing diabetes by 26%.[12]
Heart disease is responsible for 31% of all global deaths[13] and although one sugary drink has minimal effects on the heart, consuming sugary drinks daily are associated with long term consequences. A study found that men, for every added serving per day of sugar-sweetened beverages, each serving was associated with a 19% increased risk of developing heart disease.[14] Another study also found increased risks for heart disease in women who drank sugary drinks daily.[15]
Obesity is also a global public and health policy concern, with the percentage of overweight and obese people in many developed and middle income countries rising rapidly.[16] Consumption of added sugar in sugar-sweetened beverages has been positively correlated with high calorie intake, and through it, with excess weight and obesity.[17] The addition of one sugar-sweetened beverage per day to the normal US diet can amount to 15 pounds of weight gain over the course of 1 year.[18] Added sugar is a common feature of many processed and convenience foods such as breakfast cereals,[19] chocolate, ice cream, cookies, yogurts and drinks produced by retailers.[20] The ubiquity of sugar-sweetened beverages and their appeal to younger consumers has made their consumption a subject of particular concern by public health professionals. In both the United States and the United Kingdom, sugar sweetened drinks are the top calorie source in teenager's diets.[21][22]
A French study published in 2019 on the British Medical Journal also enlighted a possible link between the consumption of sugary drinks (beverages containing more than a 5% of sugar) and a higher or increased risk of developing cancer.[23] Even if the researchers were unable to proof a clear causality between the two factors, they stated that their results can be taken as a confirm that "reducing the amount of sugar in our diet is extremely important."[24]
Dental caries, also known as tooth decay or dental cavities, is the most common noncommunicable disease worldwide.[25] Sugary drink taxes have been discussed as a potential means to reduce the health and economic burden of dental caries.[26][27][28][29]
Comparison to tobacco taxes
Proponents of soda taxes cite the success of tobacco taxes worldwide when explaining why they think a soda tax will work to lower soda consumption.[30] Where the main concern with tobacco is cancer, the main concerns with soda are diabetes and obesity. The tactics used to oppose soda taxes by soda companies mimic those of tobacco companies, including funding research that downplays the health risks of its products.[31]
Impact
Revenue
The U.S. Department of Health and Human Services reports that a national targeted tax on sugar in soda could generate $14.9 billion in the first year alone.[citation needed] The Congressional Budget Office (CBO) estimates that a nation-wide three-cent-per-ounce tax would generate over $24 billion over four years.[32] Some tax measures call for using the revenue collected to pay for relevant health needs: improving diet, increasing physical activity, obesity prevention, nutrition education, advancing healthcare reform, etc.[33] Another area to which the revenue raised by a soda tax might go, as suggested by Mike Rayner of the United Kingdom, is to subsidize healthier foods like fruits and vegetables.[34]
Consumption
According to a 2019 review of research on sugar drink taxes, the taxes successfully reduced consumption of sugar drinks and reduced adverse health consequences.[35]
In general, the theory of supply and demand predicts that the effect of taxes is to raise the consumer price of a good, and lower the quantity consumed. Whether the sugary drinks tax is imposed on the seller or consumer, in both cases the tax burden is shared between both.[36]
Several studies have shown this effect in practice:
- A 10% tax in Mexico enacted in January 2014 reduced consumption by 12% after one year, said one study that had not yet been peer-reviewed.[37]
- Various studies of the tax of one cent per ounce in Berkeley California have reported consumption has dropped between 9.6% and 52%, depending on the time period examined and the methods used.
- A study (which has yet to be peer-reviewed) of the 1.5-cents-per-ounce tax in Philadelphia found actual sales of the affected beverages (which included diet beverages) dropped 46% in the city itself, but when accounting for people traveling to neighboring cities without a tax, overall purchases of the affected beverages dropped 20%.[38]
The way that the tax burden is divided upon the consumer and seller depends on the price elasticity for sugary drinks. The tax burden will fall more on sellers when the price elasticity of demand is greater than the price elasticity of supply while on buyers when the price elasticity of supply is greater than the price elasticity of demand. The price elasticity for sugary drinks is different from country to country. For instance, the price elasticity of demand for sugary drinks was found to be -1.37 in Chile while -1.16 in Mexico.[39][40] Hence if both of those results were realistic and the price elasticity of supply would be the same for both, the tax burden on consumers would be higher in Mexico than in Chile.[36]
A 2019 National Bureau of Economic Research paper concluded that sugar drink taxes were "welfare enhancing, and indeed that the optimal nationwide SSB tax rate may be higher than the one cent per ounce rate most commonly used in U.S. cities."[41] A 2019 study in the Quarterly Journal of Economics estimated that the optimal sugar drink tax on the federal level in the U.S. would be between 1 and 2.1 cents per ounce, whereas the optimal tax on the city-level was 60% lower than that due to cross-border shopping.[42]
Externalities as a rationale for taxation
The purchase of sugary drinks has a significant negative externalities when over-consumption causes diseases like obesity and type 2 diabetes. Depending on the national health care system, a significant portion of these costs are paid by taxpayers or insurance rate-payers; lost productivity costs are paid to some degree by employers.[43][44]
Society as a whole could be worse off if these costs are calculated to be greater than the benefit to the consumers of soda.[45]
A Pigovian tax like a sugary drinks tax, factors these externalities into the price of the beverage.[39] To some degree, this causes people who over-consume soda to pay for health care costs they are causing, which proponents argue is more fair.[45] In theory, this tax could be set at such a level that reduces consumption until the collective private benefit balances the collective costs of poorer health, though this could be accomplished at a lower tax level by using the tax revenue to create childhood nutrition programs or obesity-prevention programs.[44] This would lessen the tax burden on people who consume soda moderately enough not to cause health problems.[44]
Countries
...
United Kingdom
In the 2016 United Kingdom budget, the UK Government announced the introduction of a sugar tax, officially named the "Soft Drinks Industry Levy". The tax came into effect on 6 April 2018.[87] Beverage manufacturers are taxed according to the volume of sugar-sweetened beverages they produce or import. The tax is imposed at the point of production or importation, in two bands. Drinks with total sugar content above 5g per 100 millilitres are taxed at 18p per litre and drinks above 8g per 100 millilitres at 24p per litre. The measure was estimated to generate an additional £1 billion a year in tax revenue which would be spent on funding for sport in UK schools.[88][89] Despite not being part of the United Kingdom the British Soft Drinks Industry Levy will come into force on the Isle of Man on 1 April 2019 because of the Common Purse Agreement.[90]
It was proposed that pure fruit juices, milk-based drinks and the smallest producers would not be taxed.[91] For other beverages there was an expectation that some manufacturers would reduce sugar content in order to avoid the taxation.[92] Indeed, manufacturer A.G. Barr significantly cut sugar content in their primary product Irn-Bru in advance of the tax.
Notable research on effect of excess sugar in modern diets in the United Kingdom includes the work of Professor John Yudkin with his book called, "Pure, White and Deadly: The Problem of Sugar" first published in 1972.[93] With regard to a proposed tax on sugar-sweetened beverages, a study published in the British Medical Journal on 31 October 2013, postulated that a 20% tax on sugar-sweetened beverages would reduce obesity in the United Kingdom rates by about 1.3%, and concluded that taxing sugar-sweetened beverages was "a promising population measure to target population obesity, particularly among younger adults."[94]
Estimates of the revenue raised were reduced to £240 million per annum in 2019.[95] It helped to boost sales, rather than dampening performance, according to Britvic’s 2018 Soft Drinks Review. In April 2018 only 8.4% of the market was liable to the levy because drinks were reformulated.[96]
Criticism
The tax has been criticised on several grounds, including its likely efficacy and its narrow base. UK Member of Parliament Will Quince called it "patronising, regressive and the nanny state at its worst."[97] In addition a study by the University of Glasgow, which sampled 132,000 adults, found that focusing on sugar in isolation misleads consumers as reducing fat intake is also crucial to reducing obesity.[98]
From an opposing standpoint, Professor Robert Lustig of the University of California, San Francisco School of Medicine, has argued that the UK tax measure may not go far enough and that, "juice should be taxed the same way as soda because from a metabolic standpoint juice is the same as soda."[99] Campaigners have since called for the soft drinks tax to be extended to include confectionery and sweets to help tackle childhood obesity.[100]
United States
The United States does not have a nationwide soda tax, but a few of its cities have passed their own tax and the U.S. has seen a growing debate around taxing soda in various cities, states and even in Congress in recent years.[101] A few states impose excise taxes on bottled soft drinks or on wholesalers, manufacturers, or distributors of soft drinks.[102]
Philadelphia and Berkeley are the first two cities to pass a tax on sugary drinks in the U.S. Berkeley's tax of 1 cent/oz of sugary drink has seen a decline in soda consumption by more than 20 percent. Philadelphia's tax of 1.5 cents/oz took effect on 1 January 2017.[103]
American localities with a soda tax
Berkeley, California
The Measure D soda tax was approved by 76%[104] of Berkeley voters on 4 November 2014, and took effect on 1 January 2015 as the first such tax in the United States.[105] The measure imposes a tax of one cent per ounce on the distributors of specified sugar-sweetened beverages such as soda, sports drinks, energy drinks, and sweetened ice teas but excluding milk-based beverages, meal replacement drink, diet sodas, fruit juice, and alcohol. The revenue generated will enter the general fund of the City of Berkeley.[106] A similar measure in neighboring San Francisco received 54% of the vote, but fell short of the supermajority required to pass.[107] In August 2015, researchers found that average prices for beverages covered under the law rose by less than half of the tax amount.
For Coke and Pepsi, 22 percent of the tax was passed on to consumers, with the balance paid by vendors.[108] UC Berkeley researchers found a higher pass-through rate for the tax: 47% of the tax was passed-through to higher prices of sugar-sweetened beverages overall with 69% being passed-through to higher soda prices.[109] In August 2016, a UC Berkeley study (relying on self-reporting) showed a 21% drop in the drinking of soda and sugary beverages in low-income Berkeley neighborhoods after a few months.[110]
A study from 2016 compared the changing intake of sugar sweetened beverages and water in Berkeley versus San Francisco and Oakland (which did not have a sugary drink tax passed) before and after Berkeley passed its sugary drink tax. This analysis showed a 26% decrease of soda consumption in Berkeley and 10% increase in San Francisco and Oakland while water intake increased by 63% in Berkeley and 19% in the two neighboring cities.[111] A 2017 before and after study has concluded that one year after the tax was introduced in Berkeley, sugary drink sales decreased by 9.6% when compared to a scenario where the tax was not in place.[112] This same study was also able to show that overall consumer spending did not increase, contradicting the argument of opponents of the Sugary Drink Tax.[112] Another 2017 study results were that purchases of healthier drinks went up and sales of sugary drinks went down, without overall grocery bills increasing or the local food sector losing money.[113]
A 2019 study relying on self-reporting found a 53% drop in consumption in low-income neighborhoods after three years.[38]
Philadelphia, Pennsylvania
Democratic Philadelphia mayor Jim Kenney proposed a citywide soda tax that would raise the price of soda at three cents per ounce. At the time, it was the biggest soda tax proposal in the United States. Kenney promoted using tax revenue to fund universal pre-K, jobs, and development projects, which he predicted would raise $400 million over five years, all the while reducing sugar intake by decreasing the demand for sugary beverages.[114] Kenney's soda tax proposal was brought to the national spotlight and divided key members of the Democratic Party. Presidential hopeful Bernie Sanders argued in an op-ed that the tax would hurt the poor.[115] His opponent, Hillary Clinton, on the other hand, said that she was "very supportive" of the idea.[116] The American Beverage Association (ABA), funded by soda companies and distributors, ran local television, radio, and newspaper advertisements against the idea, claiming that the tax would disproportionately hurt the poor.[117] The ABA spent $10.6 million in 2016 in its effort against the tax.[118] The American Medical Association, American Heart Association, and other medical and public health groups support the tax.[119]
The Philadelphia City Council approved a 1.5-cents-per-ounce tax on 16 June 2016. As part of the compromise legislation that passed, the tax is also imposed on artificially sweetened beverages, such as diet soda. The law became effective on 1 January 2017.[120] It was reported after two months of the tax that Philadelphia supermarkets and beverage distributors are planning layoffs because sugary beverage sales are down between 30 and 50 percent.[121]
After the tax took effect, Kenney said retailers' price gouging blamed on the tax and charging the tax on items not subject to it was "wrong" and "misleading".[122] In February 2017, soda manufacturers and retailers announced sales declines of 30-50% in Philadelphia and announced job cuts and layoffs. Kenny characterized the layoffs as evidence of greed among manufacturers.[123] In the first four months of the soda tax $25.6 million was collected, which is lower than predicted.[124] The revenue is intended to pay for a pre-K program (49% of tax revenue), government employee benefits and city programs (20%), and rebuilding city parks and recreation centers.[125] A recent study from 2017 found that Philadelphia's tax has decreased sugary beverage consumption in impoverished youth by 1.3 drinks/week.[126] Langellier et al. also found that when paired with the pre-K program, attendance increases significantly, a finding that is likely to have longer term positive effects than a sugary drink tax alone.[126]
In March 2017, Pepsi laid off between 80 and 100 employees at two distribution plants in Philadelphia and one plant in nearby Wilmington, Delaware. The company blamed the layoffs on the tax, an assertion rejected by the city government.[127]
In September 2016, the American Beverage Association, Philadelphia business owners, and other plaintiffs filed a lawsuit against the soda tax, alleging that the tax violated the "Tax Uniformity Clause" of the state constitution.[128][118] The legal challenge was dismissed by the Court of Common Pleas in December 2016, and in June 2017 the Commonwealth Court of Pennsylvania (in a 5-2 decision) affirmed that ruling. The ABA appealed the decision to the Pennsylvania Supreme Court[129][130] but on 18 July 2018, the court upheld the tax in a 4-2 decision.[131][132][133]
A 2019 study (which has yet to be peer-reviewed) of the 1.5-cents-per-ounce tax in Philadelphia found actual sales of the affected beverages (which included diet beverages) dropped 46% in the city itself, but when accounting for people traveling to neighboring cities without a tax, overall purchases of the affected beverages dropped 20%.[38]
San Francisco, California
A one-cent-per-ounce soda tax (Prop V) passed with over 61% of the vote on 8 November 2016 and applies to distributors of sugary beverages on 1 January 2018.[134] Exemptions for the tax include infant formulas, milk products, supplements, drinks used for medical reasons, and 100% fruit and vegetable juices.[135] The soda industry spent almost $20 million in its unsuccessful push to defeat the soda tax initiative, a record-breaking amount for a San Francisco ballot initiative.[136]
In 2014, the first referendum on a soda tax, Proposition E, was voted down by San Francisco; the 2014 referendum received the support of 55 percent of voters, short of the two-thirds required for a referendum directing money to a specific item (the referendum proposed directing the revenue raised to children's physical education and nutrition programs, and in San Francisco such earmarking requires a two-thirds vote to pass).[137] In that referendum campaign, the soda industry spent about $10 million in opposition to the proposed tax.[136]
Oakland, California
A one-cent-per-ounce soda tax (Measure HH) passed with over 60% of the vote on 8 November 2016. The tax went into effect on 1 July 2017.[134]
Albany, California
A one-cent-per-ounce soda tax (Prop O1) passed with over 70% of the vote on 8 November 2016.[134] The tax went into effect on 1 April 2017[138]
Boulder, Colorado
A two-cents-per-ounce soda tax (Measure 2H) passed with 54% of the vote on 8 November 2016.[134] The tax took effect on 1 July 2017, and revenue will be spent on health promotion, general wellness programs and chronic disease prevention that improve health equity, and other health programs especially for residents with low income and those most affected by chronic disease linked to sugary drink consumption.[139] The University of Colorado, Boulder, campus was granted a one-year exemption from the tax as school officials survey what types of drinks students wish to have. The University was not aware it would be involved in the soda tax, and would have to pay an estimated additional $1 million a year to purchase sugary drinks.[140]
Cook County, Illinois
A one-cent-per-ounce soda tax passed on 10 November 2016, by a 9-8 vote, with Cook County Board of Commissioners President Toni Preckwinkle breaking the 8-8 tie. Cook County includes Chicago and has a population of nearly 5.2 million. This was the most populous jurisdiction with a soda tax in the U.S.[141] The campaign to introduce the tax was heavily funded by Mike Bloomberg.[142]
On 30 June 2017, a Cook County judge granted a temporary restraining order filed by the Illinois Retail Merchants Association and several Cook County-based grocers that prohibited the tax from being put into effect until at least 12 July.[143] The tax eventually went into effect on 2 August. Due to a conflict with the Supplemental Nutrition Assistance Program, this soda tax did not apply to any soda purchases made with food stamps, which were used by over 870,000 people.[142][144] Controversially, the tax affected diet drinks but not sugar-packed fruit juices.[142]
On 10 October 2017, the Board of Commissioners voted to repeal the tax in a 15-1 vote. The tax stayed in effect up until 1 December.[145] The tax was highly unpopular and seen mainly as an attempt to plug the county's $1.8 billion budget deficit, rather than a public health measure.[142]
Navajo Nation
In addition to the general sales tax (6 percent as of July 1, 2018) the Navajo Nation levies a special Junk Food Tax on applicable junk food items. The Junk Food Tax rate is 2 percent and applies to sales of sweetened beverages [146]
Portland, Oregon
The Coalition for Healthy Kids and Education is currently campaigning to get a soda tax on the May 2018 ballot. Their aim is to implement a 1.15 cents per ounce tax on sugary drinks. There are 18,000 signatures required by 15 December 2017 in order for the tax to be voted on in May.[147]
Seattle, Washington
On 5 June 2017, Seattle's City Council voted 7-1 to pass a 1.75 cents per ounce tax on sugary drinks, including soda and some fruit drinks; the tax does not include diet soda drinks and it started on 1 January 2018.[148] After the tax was implemented, people were surprised that the tax made a case (24 cans) of Coke become $7.35 more expensive when compared to a case of Diet Coke or Coke Zero. The $15 million Seattle assumes will be collected from the tax will be used for programs that give access to more fruits and vegetables for low-income families, adding education programs and studying the tax on how it impacts behavior.[149] Seattle collected over $17 million in the first nine months of the tax and the price increase has mostly passed on to the consumers.[150]
In 2018, Washington state voters approved Initiative 1634 which bans new taxes on grocery items such as sugary drinks, blocking other Washington cities from adding a sugary drink tax. Funding for the "Yes on 1634" campaign included over $20 million from major beverage producers. Both proponents and opponents of the initiative made reference to Seattle's sugary drink tax.[151]
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gun to the head move
no lnx
see prop node
June 27, 2018
For years, the soda industry had an ironclad strategy when a city wanted to enact a soda tax:
Spend a lot of money, rally local businesses, and shoot it down.
That strategy worked again and again, until it didn’t. In 2014, Berkeley, Calif., passed the nation’s first tax on sugary drinks, which have been linked to heart disease, obesity and tooth decay. Since then, eight communities, including three more cities in California, enacted similar bills.
Now the beverage industry has a new approach. Instead of fighting the ordinances city by city, it is turning to states, trying to pass laws preventing any local governments from taxing their products.
In California, the legislature passed a bill Thursday that will pre-empt any new local beverage or food taxes for 12 years. Arizona and Michigan have passed similar laws. In Oregon, the state’s grocers have collected enough signatures to bring a ballot initiative barring any taxes on grocery items. And legislators are considering pre-emption bills in other states, including Pennsylvania, New Mexico and Washington.
“It’s a little bit like, instead of playing a game of whack-a-mole, you could just put a sheet of plywood over all the holes,” said Franco Ripple, a spokesman for the Campaign to Defend Local Solutions, a group that was founded last year to oppose state laws that limit local autonomy.
The beverage industry says the statewide measures are an appropriate way to protect local businesses and consumers from higher taxes. “People across the country are taxed enough, and they can’t afford new taxes on what they eat and drink,” said William Dermody, the vice president for media and public affairs at the American Beverage Association, an industry trade group.
In California, the arrival of the bill to pre-empt soda taxes, which was championed by the soda industry and introduced over the weekend, came as a shock to public health advocates and many state lawmakers. The state has passed more soda taxes than any other, shepherded by progressive lawmakers who see them as a source of revenue for schools and public services and a tool to fight obesity and diabetes. Scott Wiener, a state senator who represents San Francisco and parts of San Mateo County, said the beverage industry had successfully held California “hostage.”
Bill Monning, the Senate majority leader, was one of a handful of Democrats who voted against the bill. He called its passage “unprecedented” and said it would stop cities and counties “from being able to take steps to protect the health of their residents.” But he also said that state lawmakers would redouble their efforts to curb consumption of sugary drinks. He pointed out that the Senate health committee had just voted in favor of a bill that would require warning labels on sugary drinks indicating that they contribute to various health problems.
“It’s a sad day for democracy in California,” he said. “But ever the optimist I think that the outrage of Big Soda blackmailing the state legislature and the people of California is going to boomerang.”
Beverage companies spent at least $7 million to get an initiative on the ballot this November that would have prevented local communities from raising taxes without approval from two-thirds of voters or an elected body, rather than a simple majority. Such a change would have made it much more difficult for localities to pay for police, fire, transit and other public services.
According to several state senators, the industry then went to lawmakers in Sacramento with a proposal: Pass a bill banning soda and food taxes, and the industry would drop its November ballot initiative.
“They sent us a ransom note that they will drop this horrible ballot measure if we put a 12-year moratorium on local soda taxes,” said Mr. Wiener, who has long supported soda taxes and voted against the bill that now bars them. “It’s a classic case of picking your poison. The soda industry has gone completely rogue.”
Several top lawmakers said they opposed the measure banning soft drink taxes, known as Senate Bill 872, but many felt obliged to support it because they were so worried about the effects of the broader ballot initiative.
Nancy Skinner, a state senator who represents Richmond, Calif., as well as three cities that passed soda taxes in 2016, voted against the measure but said she recognized that her colleagues who supported it were in a bind. The law will not overturn soda taxes enacted before 2018, but it will prevent any new ones, including a soda tax on the ballot later this year in Richmond. “It is totally wrong to deny the residents of Richmond a vote,” she said.
Gov. Jerry Brown avoided taking a position on the bill until Thursday but has now signed it into law. Critics of the bill pointed to a photo that shows him posing with executives from Coca-Cola, PepsiCo and the American Beverage Association at a recent private dinner at the governor’s mansion. The governor’s spokesman said the meeting was unrelated to the soda tax measure.
The push for the pre-emption law began to materialize this year when an industry-financed group, the California Business Roundtable, started collecting signatures for the ballot initiative making local tax increases harder. The American Beverage Association California PAC contributed heavily to the effort, raising $6 million from Coke and Pepsi, $1 million from Dr Pepper Snapple and $100,000 from Red Bull.
The deal, reported by The Sacramento Bee on Sunday, which called it “a shakedown,” provoked a fierce outcry across the state and the country. The American Heart Association, the American Diabetes Association, the American Cancer Society and more than 20 other groups issued a joint statement on Tuesday calling on Mr. Brown to oppose it and chiding the soda industry for “resorting to backroom deals and underhanded efforts to preserve its profits.”
The beverage association, which supported the California legislation, said its turn to pre-emption simply reflected its view that taxes on drinks represented an unfair burden — not just on them, but on retailers, bottlers, shipping companies and consumers.
Mr. Dermody noted that, in several states, the pre-emption bills are backed by a coalition of business interests, including grocery stores, and, in some cases, labor unions.
The California measure is part of a broader national strategy by the beverage industry to head off local soda taxes, which have passed in eight communities. Berkeley’s passage of a major soda tax paved the way for other cities to act. Philadelphia, San Francisco, Oakland, Calif., and the county that includes Chicago imposed their own such measures in 2016, followed by Seattle in 2017. The soda industry spent at least $38 million fighting the taxesin 2016, which were backed by public health advocates and the billionaires Laura and John Arnold and Michael R. Bloomberg, former mayor of New York, who contributed $20 million to the Bay Area soda tax campaign.
The experience of the places that adopted soda taxes has been mixed. Research in Berkeley, Philadelphia and Mexico, which has a similar tax, shows that the measures appear to increase beverage prices and reduce sugary drink sales.
But there has been backlash. Cook County in Illinois repealed its tax in the face of voter complaints and industry pressure. And Mayor Jim Kenney of Philadelphia has had to back away from his initial claims that beverage tax revenue would provide enough money to pay for a universal prekindergarten program for the city, as revenue has come in below projections. Definitive evidence about public health effects of the bills is still a long way off.
The beverage companies have borrowed a tactic from the tobacco industry, which used state pre-emption laws in the 1980s to ban cigarette taxes and other municipal antismoking ordinances. Republican-controlled state legislatures have also increasingly used state pre-emption laws to prevent cities and towns from adopting a wide range of local measures, including anti-discrimination laws, bans on natural gas fracking, higher minimum wages, and restrictions on the use of plastic bags.
“The irony is that the soda companies screamed very loudly about government overreach when soda taxes began to get passed,” said Kelly Brownell, the dean of the Sanford School of Public Policy at Duke University. “But now they are looking for the ultimate government overreach when it works in their favor.”
Anahad O’Connor is a staff reporter covering health, science, nutrition and other topics. He is also a bestselling author of consumer health books such as “Never Shower in a Thunderstorm” and “The 10 Things You Need to Eat.”
Margot Sanger-Katz is a domestic correspondent and writes about health care for The Upshot. She was previously a reporter at National Journal and...
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sjmn 519
HEALTH
Why efforts to limit soda keep fizzling
Three anti-soda measures have failed, leaving two to be voted on by the end of the month
By Laurel Rosen h a l l
CALmatters
Earlier this year, Democrats in the state Capitol introduced several measures intended to limit Californians’ consumption of soda, arguing that rotting teeth and rising diabetes presented a public health crisis demanding action akin to regulations on cigarettes.
They proposed taxing soda, banning Big Gulps, prohibiting in-store discounts on soft drinks, banishing them from the front of convenience stores, and slapping safety warning labels on all sugary beverages from Coca-Cola and sports drinks to sweet tea and chocolate milk.
The soda industry responded by drastically ramping up its lobbying in the statehouse, more than tripling the amount it spent in the first three months of this year, compared with the same period last year.
Now, as the Legislature hits the session’s halfway point, three of the anti-soda measures have fizzled. The two that remain in play — one prohibiting discount pricing on soda and another requiring warning labels — face difficult floor votes by the end of the month, as some lawmakers are likely to argue that the measures amount to “nanny government.”
Soda’s success so far in thwarting an agenda backed by doctors, dentists and public health advocates show that despite Democrats’ historically large majority, some corporate interests remain influential in a Capitol dominated by varying shades of blue. The soda industry has gained clout by spending millions on lobbying and campaign donations, hiring well-connected former Capitol aides and forming alliances with labor unions that lend additional political muscle.
“There is no doubt that the industry has a very strong voice in Sacramento and unlimited resources. That’s a tough opponent,” said Sen. Bill Monning, who is carrying the bill to require warning labels on sugar-sweetened beverages.
“So we try to use moral persuasion, health persuasion to overcome the political forces.”
Monning, a Carmel Democrat, points to research by the national Centers for Disease Control and Prevention that shows drinking sugary beverages is associated with obesity, diabetes and other ailments. Nationwide, the CDC report says, 63% of youth and 49% of adults drink a sugary beverage on a typical day — though consumption is lower in California than in most of the states surveyed, and other reports suggest Americans are drinking more water and less soda since the time of the CDC study.
Monning has carried several unsuccessful bills to tax soda or require warning labels. His current measure would require that sugar-sweetened drinks sold in California carry a notice saying: “STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) may contribute to obesity, type 2 diabetes, and tooth decay.”
He recently narrowed the bill to drop the requirement on flavored milk. No surprise, that hasn’t appeased soda companies.
“There are already more effective ways to help people manage their overall sugar consumption rather than through mandatory and misleading messages,” said a statement from Steve Maviglio, a Democratic political consultant working for theAmerican Beverage Association, which includes Coke, Pepsi and the Dr. Pepper Snapple company and which is promoting their drinks with less sugar than standard sodas.
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The association hired Fredericka McGee, an attorney and longtime Capitol aide who advised five Assembly speakers, to lead its government affairs in California. The last speaker Mc-Gee worked for was Toni Atkins, who is now the leader of the state Senate.
In the first three months of this year, the lobbying operation McGee oversees involved taking five legislators and 16 aides to a Sacramento Kings basketball game, and treating many of them to food and drinks. Such goodies account for nearly $6,800 of the $273,704 the American Beverage Association spent on lobbying during the first quarter — a massive jump from the $76,754 it spent during the same period last year. Much of the spending this year went toward hiring political strategists and pollsters who worked on Barack Obama’s presidential campaigns.
Lobbying ramped up, Maviglio said, in response to the “very comprehensive and well-financed attack on the beverage industry.” Associations representing dentists and doctors, which support the anti-soda bills introduced this year, also spend big bucks lobbying in the statehouse and bestowing legislators with campaign cash. The California Medical Association spent $457,219 lobbying in the first quarter of this year, though it reported work on far more bills than the soda group.
As soda companies fight proposals they believe could harm their business, the message is often amplified by labor unions that carry clout in a Democratic-controlled Legislature. Roughly 25,000 Californians work in the soda industry, many of them in union jobs at bottling plants or delivering beverages to stores and restaurants. Fearing that a decline in soda drinking will reduce their jobs, Teamsters are lobbying against the bill to require warning labels, as they did against the measure to tax soda to pay for public health programs, which stalled last month.
“When the employer that has a unionized workforce and the union are on the same side in a legislative fight, it is a very powerful message,” said Shane Gusman, the Teamsters’ lobbyist.
Hearing the concern from workers makes some Democrats think twice about health policies that could hurt the middle class, Gusman said. The soda tax stalled when the chair of the Assembly’s tax committee said she couldn’t support a regressive tax that would burden people who are poor.
Soda politics roiled the Capitol last year when the industry teamed up with the powerful Service Employees International Union to get lawmakers to ban cities from passing new taxes on soda or other grocery items until 2031. Frustrated with local soda bans voters approved in San Francisco, Berkeley and Oakland, beverage companies last year poured $8.3 million into a committee crafting a statewide ballot measure that sought to raise the threshold necessary to pass a new tax.
Labor unions wanted to keep the lower threshold but didn’t want to spend money fighting the ballot measure. So they struck a deal: If soda companies pulled their initiative off the ballot, the union would support a ban on local grocery taxes. Lobbying together, SEIU and the soda companies persuaded the Legislature to pass the deal, which then-Gov. Jerry Brown promptly signed into law.
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But the deal does not preclude a statewide tax on soda, something doctors and dentists are now working on as they craft an initiative for the 2020 ballot. They’re building an argument that soda industry tactics are similar to those of cigarette companies, and should be taxed and regulated accordingly. CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.
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berk 1st, 50% down in poor hood; slightly up in SF and ___ kpfa 2/22/19
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://www.exposedbycmd.org/2018/10/16/reporters-memo-coke-and-pepsi-play-hardball-in-attempt-to-prevent-the-spread-of-soda-taxes
Faced with a rising tide of data from the United States and around the world showing that soda taxes work to reduce consumption and improve public health, the soda industry is battling back hard with big-dollar bully tactics geared toward crushing local soda tax campaigns before they even get off the ground.
New tactics being deployed by the soda industry include state bills banning local soda taxes, broad statewide initiatives to ban all grocery taxes or require a supermajority before raising any taxes, and political spending geared toward bending state politicians to their will.
Soda, Like Tobacco, Has Serious Health Effects
The public health community — pediatricians, dentists, the American Heart Association, and more — is energized to take action as never before on soda and other sugary drinks because new data is showing that consuming sugar in liquid formincreases risks of serious health conditions, such as heart disease, type 2 diabetes, nonalcoholic fatty liver disease, and obesity in a much more significant way than was previously known.
One Harvard study found that consuming just one to two sugary drinks a day increases your risk of developing diabetes by a whopping 26 percent. Another Harvard analysis showed that men averaging one can a day of a sugary drink had a 20 percent increased risk of heart attack. Further, more than three-quarters of American adults are considered overweight or obese, as are 30 percent of children, according to an international study published in The Lancet.
Soda Taxes, Like Tobacco Taxes, Work
Multiple studies, including a recent analysis by researchers at Drexel University, show that soda taxes work. Drexel surveyed consumers before and after the implementation of Philadelphia’s tax and found that daily consumption of soda decreased by 40 percent and energy drink by 64 percent, while consumption of bottled water increased by 58 percent. Researchers at UC Berkeley’s School of Public Health found that sugary beverage consumption fell 21 percent in Berkeley after that city’s tax was implemented, while water consumption increased by 63 percent over comparison cities.
Many U.S. localities have implemented a soda tax to reduce obesity and related public health problems: Berkeley, CA; Philadelphia, PA; San Francisco, CA; Oakland, CA; Albany, CA; Boulder, CO; Santa Fe, NM (defeated 2017); Cook County, IL (repealed 2017); and Seattle, WA. In each locality, the American Beverage Association (ABA) has bankrolled a big-dollar PR campaign against the tax.
States with soda taxes include West Virginia (1951), Arkansas, Virginia, and Tennessee. And there are more than 30 countries with soda taxes, including France, Hungary, Ireland, Mexico, Norway, Philippines, South Africa, and the UK. Many other countries are pursuing such taxes.
Leading the Opposition: Coke, Pepsi, and the ABA
As cities and counties in the United States use the tools of local democracy to introduce modest soda taxes, they are facing sophisticated opposition spearheaded by the ABA, the blandly named trade association representing Coke, Pepsi, Dr. Pepper Snapple Group, and other sugary drink manufacturers. The use of the ABA name on websites and in anti-soda tax commercials effectively shields the brand-name companies from accountability and culpability for the harms caused by sugary beverages.
The ABA is a $125 million powerhouse bankrolled by the largest players in the soft drink industry. Coke brands include Fanta, Sprite, Fresca, Dasani, Honest Tea, and Minute Maid. PepsiCo brands include Gatorade, 7Up, Tropicana, and Mountain Dew.
In city after city, the ABA has fought grassroots campaigners seeking to implement a soda tax using front groups or big-dollar PR campaigns that spin the tax as a “grocery tax” and a burden on working families. You won’t see the CEOs of Coke and Pepsi making the case against a soda tax. Instead we see sympathetic front men and women, like the African American “single mom” in Chicago who told the camera “We’re being taxed out of Cook County. I’m a single mom. I can’t afford this tax!” The ABA has consistently worked to deflect the conversation away from public health and to frame the tax as an unfair, unnecessary “grocery tax.”
Preemption Strategy to Defeat Soda Taxes Borrowed from Big Tobacco
Municipalities have long played a valuable role as “laboratories of democracy” for important public policy innovations, including in public health. When U.S. cities began to regulate tobacco and create “tobacco free” work environments in the 1980s, the industry jumped into action.
“We could never win at the local level…. So the Tobacco Institute and tobacco companies’ first priority has always been to preempt the field,” said a tobacco lobbyist. Today, the majority of states have some type of tobacco preemption, and the soda industry is borrowing the same technique.
According to Grassroots Change, 12 states have enacted laws preempting local ordinances related to nutrition, including measures rammed through in Michigan, Arizona, and California over the past year.
In Michigan, House Bill 4999 was introduced Sept. 20, 2017, rushed through the legislature, and signed into law on Oct. 31. The bill bans an excise tax “on the manufacture, distribution, wholesale sale, or retail sale of food for immediate consumption or nonimmediate consumption.” Beverage and soda taxes are not mentioned, but included, according to legislative counsel analysis.
A host of agricultural interests were activated to register in favor of the bill, making it a “farm interests” bill. These groups testified in a very vague manner that they make and export many food products and are responsible for a lot of jobs in the state, but did not address any specifics nor mention a beverage tax.
The powerful $100 million National Federation of Independent Business (NFIB) also testified in favor of the bill,specifically citing the beverage tax passing in other states. The NFIB has also worked to preempt paid sick days and local minimum wage hikes in other states and was cited by the media as a key player in Michigan.
In Arizona, HB 2484 received its first reading on January 30, 2018, rushed through the legislature, and was signed into law on March 16. This bill also broadly discusses food taxation, not just a beverage tax or a soda tax. The groups registered to lobby for the bill include the Arizona Retailers Association, Arizona Restaurant Association, Arizona Beverage Association, Arizona Food Marketing Alliance, and Arizona Chamber of Commerce and Industry, as well as the Arizona Association of Food Banks. CMD has submitted an open records request to the bill authors for more information.
A bill has been introduced in Illinois (HB 4082) and another is scheduled for a vote in Pennsylvania (HB 2241).
Broad Anti-Grocery Tax Measures on the Ballot in Washington and Oregon
But the strong-arm tactics don’t stop there. The industry is rolling out statewide ballot measures in referendum and initiative states to ban all grocery taxes, including soda taxes.
Seattle’s soda tax took effect in January 2018. Since then, more kids and adults are drinking water, and it brought in more than $10 million in revenue for use on educational and health programs in its first six months. But in February 2018, a committee with the name “Yes! To Affordable Groceries” was launched to make sure the public health measure would not be adopted by any other local governments in Washington. Initiative 1634 is a deceptively simple anti-grocery tax measure that has been run through the corporate spin machine; it opens with the line “Whereas access to food is a basic human need of every Washingtonian.” The soda industry has raised over $20 million for the effort so far, with little organized opposition on the other side.
Heavy-handed industry tactics are also on display in Oregonthis year, where grocers and the ABA have raised $6.5 million on an overly broad constitutional amendment that would not just impact soda taxes but can be read as prohibiting taxes at all stages in the chain of commerce, permanently preventing the state and its cities and counties from levying any taxes related to distribution or sale of groceries. The ABA recently kicked in two enormous cash contributions of $500,000 each.
Opponents of the measures on the ballot in Oregon and Washington appear unlikely to be able to muster the kind of big money wielded by the soda industry. But health groups like the American Heart Association are doing their best to educate the media and voters.
One headline in the Seattle Times summarized what’s on the line for local democracy campaigns well: “Vote for this initiative and you may as well bow down to your corporate overlords.”
Supermajority Strategies and High-Stakes “Hostage Taking” in California
Early in 2018, California had the most soda tax measures under consideration of any state. Cathedral City, Palo Alto, Santa Cruz, and Richmond all seemed poised to join Berkeley, San Francisco, Oakland, and Albany as cities with soda taxes on the books.
That changed in April when the ABA spent millions on a campaign to get an explosively controversial measure on the November ballot that would have required a two-thirds supermajority vote by either voters or an elected body before any tax hike at the local level could be implemented. The move prompted an outcry by mayors across the state and was characterized as an “abomination” by Governor Jerry Brown.
After meeting with the soda industry, the governor cut a deal that resulted in legislators in Sacramento passing a preemption bill to ban local soda taxes until 2030 in exchange for taking the measure off the ballot. The whole incident was called a “shakedown,” “extortion,” and “high-stakes hostage taking” by the media.
Sen. Scott Wiener (D-San Francisco) said, “Industry is aiming basically a nuclear weapon at governing in California and saying if you don’t do what we want, we’re going to pull the trigger and you are not going to be able to fund basic government services.”
This supermajority tactic, popularized by the American Legislative Exchange Council (ALEC), which has peddled a “Super-Majority Act” for decades, is now spreading. Following last year’s repeal of a short-lived soda tax in Cook County, Illinois, a group of county commissioners introduced legislation last month that would require a two-thirds supermajority vote by commissioners to enact any new taxes.
Public health groups campaigning for soda taxes did score one big win this year, when the Supreme Court of Pennsylvania upheld the City of Philadelphia’s 2017 soda tax after an industry challenge.
Consumers can anticipate more deep-pocket PR campaigns and tactics in 2019 to bully localities into abandoning the soda tax idea.
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CA got ass kicked
new frontier in the #sodatax war is emerging along the west coast. Industry-funded committees have drawn up ballot measures to preempt voters’ local soda tax initiatives in California, Oregon, and Washington state. :{https://:(style="position:absolute !important;overflow:hidden !important;width:1px !important;height:1px !important;padding:0px !important;border:0px !important;clip:rect(1px, 1px, 1px, 1px) !important"):}:buff.ly/2KsyOcC:{ :(style="position:absolute !important;overflow:hidden !important;width:1px !important;height:1px !important;padding:0px !important;border:0px !important;clip:rect(1px, 1px, 1px, 1px) !important"):}: #CALeg #orpol #waleg
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A new frontier in the soda tax war is emerging along the west coast. Industry-funded committees have drawn up ballot measures to preempt voters’ local soda tax initiatives in California, Oregon, and Washington state.
Starting with Berkeley, California in 2014, public health campaigners have succeeded in getting eight localities to enact taxes on sodas and other sugary beverages as a way to crack down on sugar consumption and battle obesity. Four of those localities are in California, and Seattle, Washington passed a tax that became effective at the beginning of 2018.
Now big soda manufactures are fighting back, putting big money behind statewide initiatives that would stop these local democracy efforts in their tracks.
The name of the game is preemption: banning, with a piece of legislation at the state level, cities and counties from democratically enacting soda taxes. The technique was wielded as a weapon by Big Tobacco in the ’80s and ’90s to stop communities from regulating their deadly product by creating smoke-free workplaces. Now 12 states ban smoke-free ordinances and experts say preemption itself is the public health threat.
In a June 2017 article in the American Journal of Public Health, Jennifer Pomeranz of New York University’s College of Global Public Health and Mark Pertschuk of Grassroots Change in Oakland, California called preemption “a significant and quiet threat to public health in the United States” because it leaves municipalities “increasingly unable to address acute public health issues that will have lasting consequences for the health of communities.”
SODA TAXES TACKLE PUBLIC HEALTH CHALLENGES
Rising levels of obesity, diabetes, heart disease, and other serious public health challenges related to the consumption of sugary beverages have galvanized grassroots public health leaders. One tool they can use to address these challenges is a modest sales tax on sodas and sweetened beverages, with revenues going to support public health and education programs. New data show that consuming sugar in liquid form increases risks of serious health conditions such as heart disease, type 2 diabetes, nonalcoholic fatty liver disease, and obesity in a much more significant way than was previously known.
Soda taxes work. Researchers at Drexel University surveyed consumers before and after the implementation of Philadelphia’s tax and found that daily consumption of soda decreased by 40 percent and energy drinks by 64 percent while consumption of bottled water increased by 58 percent. Researchers at UC Berkeley’s School of Public Health found that sugary beverage consumption fell 21 percent in Berkeley after that city’s tax was implemented, while water consumption increased by 63 percent over comparison cities.
There’s a lot at stake for America’s biggest soda companies. Carbonated soft drinks–such as Coke, Fanta, Sprite, and Fresca–make up two-thirds of Coca-Cola’s production, and U.S. soda sales earned the company more than $10 billion in 2015. And PepsiCo’s soda sales – including Pepsi, 7Up, and Mountain Dew – still account for one-quarter of the company’s $38 billion in North American sales, despite a shift toward healthier products. But soda consumption fell to its lowest point in 31 years in the U.S. in 2016, according to Fortune, andCoca-Cola concedes that sweetened beverage taxes “are hurting Coke’s business.”
As cities and counties across the county introduce taxes on sodas and sweetened beverages to counter the public health risks, they are facing sophisticated opposition campaigns funded by these soda giants operating through their deep-pocketed trade group, the American Beverage Association (ABA). The ABA has launched big-dollar TV ad campaigns to fight soda taxes, spent heavily on lobbying state legislatures, sued to block soda taxes, and now is launching massive statewide ballot initiatives to roll back local soda taxes.
The soda industry uses the blandly named trade association to shelter its own brand names from controversy and condemnation, taps small business owners to champion their cause, and spins the tax as a “grocery tax” that will impact all consumers, not just those loading up the shopping cart with Coke and Snapple.
BIG SODA TURNS TO THE BALLOT TO BLOCK LOCAL HEALTH LAWS
Now the industry has latched on to statewide preemption ballot measures up and down the west coast as a way to halt local momentum on soda taxes. California and Washington’s preemption initiatives are seeking enough signatures to get on the ballot and must finish that process by July in order to go before voters in November 2018. Oregon’s initiative has already qualified for the November 2018 ballot.
Coca-Cola Co, PepsiCo, Dr. Pepper Snapple Group, and Red Bull have thrown a combined $3 million at overriding voters’ will in Washington state (proposed initiative 1634), and the ABA has spent more than $7 million so far in the effort to override Californians’ local votes (Attorney General Tracking #17-0050).
California’s proposed initiative would stack the deck for the likes of Coca-Cola and PepsiCo by preventing cities and counties from raising any taxes without the approval of two-thirds of either voters or an elected body. That explains why the industry is throwing so much cash at the current California override attempt, making it potentially the most expensive political contest in the country in 2018.
The American Beverage Association California PAC is by far the largest contributor to the ballot committee (“Californians for Accountability and Transparency in Government Spending, Sponsored by California Businesses”) spearheading the industry’s preemption measure, accounting for nearly 85 percent ($7 million) of its total reported revenues ($8.3 million) as of June 22, 2018. The largest contributors to the ABA CA PAC in 2017 and 2018 are Coca-Cola ($3.4million), PepsiCo ($2.6 million), Dr. Pepper Snapple Group ($1.1 million), and Red Bull ($97,312), as of June 22, 2018.
Similarly, all but less than one percent of the $3 million contributed to Washington’s anti-soda tax “Yes! to Affordable Groceries” initiative committee as of June 18, 2018 was contributed by the soda industry: 47 percent from Coca-Cola, 36 percent from PepsiCo, 15 percent from Dr. Pepper Snapple, and 1 percent from Red Bull. But the committee’s website prominently features the logos of “supporters” such as Teamsters No. 28, the Washington Food Industry Association, and the Washington Farm Bureau.
InOregon, the similarly-named “Yes! Keep Our Groceries Tax Free!” initiative committee has raised over $5.2 million, apparently from retail grocery chains and their regional trade group the Northwest Grocery Association.
Industry efforts in these west-coast states are a “fantastic assault on local democracy, but also on the ability of cities and countries to function,” Pertschuk said. Pertschuk added that California’s initiative in particular “would be so devastating to communities, so far beyond soda taxes, it really would starve communities.”
First published by Salon. a pearson
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https://www.exposedbycmd.org/2018/04/30/trampling-local-democracy-beverage-industry-pushes-soda-tax-ban-harrisburg
You wouldn’t watch your kid gobble up nine teaspoons of sugar a day would you? Well that is what she is getting if she is downing a can of Coke each day. And that is not all she is getting. One study found that consuming just one to two sugary drinks a day increases your risk of developing diabetes by a whopping 26 percent. Men who average one can a day, raise their risk for heart attack by 20 percent.
New statistics like these are prompting the public health community to back soda taxes as a policy tool to reduce consumption. But as local soda tax campaigns are bubbling up in cities across the nation, the beverage industry is working quash this expression of local democracy.
Soda Taxes Work
On January 1, 2017, Philadelphia became the largest American city to implement a soda tax on sugary beverages.
“We know that sugary drinks are the leading source of added sugar in American diets contributing to Type II diabetes, obesity and heart disease,” said David Greineder of the American Heart Association. “We need to support policies that reduce the consumption of these drinks across the board.”
That is exactly what is happening in Philadelphia.
Researchers at Drexel University surveyed consumers before and after the implementation of the tax and concluded that “within the first 2 months of tax implementation, relative to the comparison cities, in Philadelphia the odds of daily consumption of regular soda was 40% lower; energy drink was 64% lower; bottled water was 58% higher; and the 30-day regular soda consumption frequency was 38% lower.”
Mayor Jim Kenney’s office points out that the tax is working exactly as promised to do other great things for the city. “The beverage tax has raised nearly $80 million in its first year. It has already allowed us to send 2,000 children to Pre-K each year, created 250 living wage jobs in early education, and supported 11 community schools,” said Kenney spokesman Mike Dunn. Community schools connect residents with food, clothing, summer jobs, and employment training.
Every argument put up by industry is getting knocked down by the facts. Industry says they are losing jobs, but unemployment is down in sectors related to the tax and wage tax revenue is up. Industry complains that people are leaving the state to shop, but the Drexel study indicates that consumers may just be drinking more water. Coke, with its Dasani branded water, and Pepsi, with the Aquafina brand, should be pleased as punch.
But on April 9th, a bill was introduced in Harrisburg that would retroactively roll back Philly’s tax and ban other localities in Pennsylvania from pursuing the same course. The bill, HB 2241, was introduced by Rep. Mark Mustio, the Allegheny County Republican leading House Republican campaign fundraising efforts. As CMD has reported, the beverage industry is not shy about bankrolling its friends come election time.
Government Overreach
Not surprisingly, folks in Philly aren’t reacting well to this heavy-handed move.
“The beverage industry lost the fight in Philadelphia so they have turned to the state legislature to fight a battle they could not win on its merits. They decided to try to completely change the rules of the game by going behind the backs of local communities to strip municipalities of their right to govern. Philadelphia found a local solution to improve health and fund much-needed programs; Harrisburg should not take that away,” said Sanul Corrielus, a cardiologist in Philadelphia.
“State politicians like Rep. Mustio like to complain about government overreach, but it is he who is overreaching by trying to overturn a local government decision clear across the state,” said Kevin Feeley, spokesman for Philadelphians for a Fair Future, a diverse coalition of community groups backing the tax.
The Mustio bill is the third such measure introduced in the past six months. Arizona Governor Doug Ducey and Governor Rick Snyder in Michigan recently signed similar bills. In Washington State, the soda industry is going a step further. After Seattle implemented a soda tax, they started a statewide ballot initiative campaign that would prevent other cities in the state from implementing a similar tax.
What is going on here?
As cities and counties utilize the tools of local democracy to introduce modest soda taxes, they are facing sophisticated opposition spearheaded by the American Beverage Association (ABA), the blandly named trade association representing Coke, Pepsi, Dr. Pepper Snapple Group, and other producers of sugary drinks.
As Trade Group Battles Soda Tax, It Shields Coke and Pepsi
The American Beverage Association is a 501(c)(6) trade association and a $79 million lobbying powerhouse bankrolled by the largest players in the soft drink industry. Coke brands, including Fanta, Sprite, Fresca, Dasani, Honest Tea, and Minute Maid, represent a $32 billion market. PepsiCo brands, including Gatorade, 7Up, Tropicana, and Mountain Dew, represent an $18 billion market.
In city after city, the ABA has fought grassroots campaigners seeking to implement a soda tax with front groups, big-dollar PR campaigns and TV ad buys that spin the tax as a burden on working families. You don’t see the CEOs of Coke and Pepsi making the case against a soda tax. Instead, you see an African American woman in Chicago telling the camera, “We’re being taxed out of Cook County. I’m a single mom. I can’t afford this tax,” or a small business owner in Philly saying, “We try to offer the best food at the best price… [but] with that tax the working man can’t afford it anymore.” The ABA name shields the brand-name companies from accountability and culpability.
The ABA has won some of these battles, rolling back a soda tax in Chicago and defeating one in Santa Fe, but it has lost more soda tax campaigns than it has won, so it is shifting the battleground to state legislatures.
In doing so, it is following a timeworn path utilized by other industries that are hazardous to public health.
Following in the Footsteps of Big Tobacco
Cities and counties have long played a valuable role as “laboratories of democracy” for important public policy innovations, including public health policies. When health data reveled that secondhand smoke increased a person’s risk of heart attack or stroke by 20-30 percent in the 1980s, U.S. cities started to create “smoke free” work environments to protect workers in restaurants, bars, and theatres.
These public health measures prompted an ugly industry backlash. In state after state, bills to ban local smoke-free zones were introduced to ban or “preempt” local ordinances. “We could never win at the local level… So the Tobacco Institute and tobacco companies’ first priority has always been to preempt the field,” said a tobacco lobbyist.
Today, twelve states preempt local smoke-free ordinances, according to Grassroots Change. The ABA is faced with similarly alarming public health data and it is borrowing from the tobacco playbook — using their lobbying power in state houses to crush local democracy.
“At its core, this issue is about state government undermining a local decision by usurping and subjugating the rights and responsibilities of a local government. To call this ill-advised tactic unpopular is an understatement,” said Donna Cooper, Executive Director, Public Citizens for Children and Youth, a child advocacy organization that backed the tax in Philly.
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After Soda Tax, Philadelphians 40 Percent Less Likely to Guzzle Sugar
By Katie O'Reilly
Just two months after a tax of $0.015 per ounce of soda, energy drinks and other sugary beverages went into effect in the City of Brotherly Love, Philadelphians were already reaching for the sweet stuff significantly less often than their counterparts in nearby cities. A study published Thursday in the American Journal of Preventive Medicine shows a 40 percent decrease in Philadelphians' consumption of soda, and a 60 percent drop in that of energy drinks.
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tool on health effects
https://grassrootschange.net/preemption-watch/
https://www.exposedbycmd.org/2018/03/28/bills-ban-local-soda-taxes-moving-states-coke-pepsi-borrow-tobacco-playbook
Watch out public health advocates – as soda tax campaigns are bubbling up in cities across the nation to combat obesity, diabetes and other serious health conditions – the beverage industry is working to choke off this expression of local democracy.
A state bill banning localities from taxing food and beverages came out of nowhere in Michigan and was signed into law by Governor Rick Snyder within weeks. Last week, Governor Doug Ducey in Arizona signed a similarly fast tracked bill. These are clear instances of corporate special interests convincing legislators to block local laws that would hurt their profitability.
In Washington State, the soda industry is going a step further. After watching Seattle’s soda tax take effect last month, industry started a state wide ballot initiative campaign that would prevent other cities in the state from implementing a similar tax.
The name of the campaign is not “Coke and Pepsi For Obesity and Diabetes,” it’s “Yes! To Affordable Groceries.” The discrepancy is not just laughable it reveals a key industry tactic in the soda wars – change the topic and talk about anything except the devastating public health impact of sugary beverages.
NEW DATA SHOWS PUBLIC HEALTH IMPACTS OF SUGARY DRINKS
The public health community – pediatricians, dentists, the American Heart Association and more – are energized to take action as never before on soda and other sugary drinks because new data is showing that consuming sugar in liquid form increases risks of serious health conditions, such as heart disease, Type 2 diabetes, nonalcoholic fatty liver disease, and obesity in a much more significant way than was previously known.
If you are a Mountain Dew addict, get ready for this statistic. One study found that consuming just one to two sugary drinks a day increases your risk of developing diabetes a whopping 26 percent. Another study showed that men averaging one can a day of a sugary drink had a 20 percent increased risk of heart attack. Further, more than three-quarters of American adults are considered overweight or obese, and 30 percent of children.
Statistics like these and skyrocketing rates of obesity in Mexico City inspired public health advocates there to champion a soda tax in 2012 that has led to a significant fall in consumption – a 6% drop in the first year after the tax was introduced was followed by a 12% decline the second year.
Berkeley, California was the first U.S. city to follow Mexico’s lead uniting physicians, dentists, school board members, Latino leaders, the NAACP, black churches, teachers unions, farm and food advocates, moms and dads behind a grassroots effort to crack down on “big soda” in 2014. They won a landslide victory, and early data shows that consumption of sugary drinks is down 21% and healthy water consumption is way up.
But as cities and counties in the United States utilize the tools of local democracy to introduce modest tax increases on soda, they are facing sophisticated opposition spearheaded by the American Beverage Association (ABA) the blandly named trade association representing Coke, Pepsi, Dr. Pepper Snapple Group and other producers of sugary drinks.
BIG DOLLAR AD BUYS IN LOCAL INITIATIVE CAMPAIGNS
When they are up to no good, brand name companies like to hide behind their trade association. The American Beverage Association is a 501(c)(6) trade association and a $79 million lobbying powerhouse bankrolled by the largest players in the soft drink industry. Coke brands including, Fanta, Sprite, Fresca, Desani, Honest Tea and Minute Maid represent a $32 billion market. PepsiCo brands including, Gatorade, 7Up, Tropicana, and Mountain Dew represent an $18 billion market.
In every locality that has introduced a soda tax in recent years, the beverage industry has responded with the techniques of a industry that knows it has a big public relations problem. The ABA has set up grassroots-sounding front groups and has blanketed the neighborhood with flyers and messaging. In Richmond in 2012, for instance, the ABA group fighting a soda tax referendum on the ballot was called “Community Coalition Against Beverage Taxes.” In El Monte, the front group was called “El Monte Citizens Against Beverage Taxes.”
The ABA has worked to rebrand the issue and shift the terms of the debate. It doesn’t want to debate a soda tax, so it spins it as a “grocery tax” that harms everyone not just those who drink soda. It doesn’t want to talk about the rising rates of obesity, it would rather talk about the “high cost of living.” Recent campaign names have included “Enough is Enough: Don’t Tax Our Groceries” in San Francisco to “Keep Seattle Livable for All.”
In TV and internet ads produced by the trade association, you don’t see the CEOs of Coke and Pepsi making the case against the soda tax. Rather, the ABA puts up a diversity of spokespeople to carry its preferred messaging. San Francisco grocery store owner Abdul Taleb tells the camera “politicians say it is a soda tax, they are lying. This is a tax on groceries.” In Chicago, a professional-looking African American woman tells the camera “we’re being taxed out of Cook County, I’m a single mom. I can’t afford this tax.” In Philadelphia, a hoagie shop owner says “we try to offer the best food at the best price…with that tax the working man can’t afford it anymore.”
The soda industry spent $48.9 million on recent soda tax opposition campaigns in Cook County, IL; Philadelphia, PA; Boulder, CO; San Francisco, CA; Oakland, CA; Seattle, WA, Santa Fe, NM; and Albany, California, according to a November 2017 report by the watchdog group Center for Science in the Public Interest. The ABA does not engage in absolute concealment of their sponsorship, but it does work to shield its brand name companies from responsibility and culpability.
The ABA has won some of these battles, rolling back a soda tax in Chicago and defeating one in Sante Fe, but it has lost more than it has won, so it is shifting the battle ground to state legislatures. In doing so it is following a timeworn path utilized by other industries that are hazardous to public health.
FOLLOWING IN THE FOOTSTEPS OF THE NRA AND BIG TOBACCO
Cities and counties have long played a valuable role as “laboratories of democracy” for important public policy innovations, including public health policies. When U.S. cities led the way regulating guns in the 1970s, the NRA responded with a raft of bills that prohibit localities from adopting reasonable gun laws tailored to local conditions. Faced with local ordinances to regulate tobacco products or create “tobacco free” work environments in the 1980s, the industry jumped into action.
“We could never win at the local level… So the Tobacco Institute and tobacco companies’ first priority has always been to preempt the field,” said a tobacco lobbyist. Today, the majority of states have some type of tobacco preemption, twelve states preempt local smoke-free ordinances and eight states have recently moved to ban local regulation of E-cigarettes.
“In 1988, it was Phillip Morris’ Smokers’ Alliance. In 2018, it’s Big Soda’s YES! TO AFFORDABLE GROCERIES. Both are front groups, then the tobacco industry’s and today the American Beverage Association’s,” said Mark Pertschuk. Pertschuk is the Director of a small advocacy organization called Grassroots Change. He is the former President of American for Nonsmokers’ Rights, which battled the tobacco industry for smoke-free workplaces.
Today, Pertschuk’s “Preemption Watch” project tracks effortsthat step on local democracy. There has already been preemption of local ordinances related to nutrition in 11 states, this applies not just to a soda tax, but to menu labelling and other policies. More preemption bills (or statewide referendums) are likely to be introduced in 2018.
In working to “preempt the field” the ABA is getting help from many of the usual suspects. Affiliates of the U.S. Chamber of Commerce have been active in local fights along with restaurant and grocers associations. Front group propagator and master propagandist Richard Berman cut ads in Sante Fe for a State Policy Network “think tank,” prompting an ethics complaint. Other State Policy Network groups have been producing and promoting questionable research saying that the soda tax harms the economy. An ALEC legislator successfully preempted local food and nutrition policies with an ALEC “model bill” in Kansas. And the National Federation of Independent Businesses, which has been battling paid sick leave ordinances, lobbied in favor of soda tax preemption in Michigan.
Grassroots activists know they are up against big institutions and big money, but they also know they have the people on their side. While Congress is universally reviled, local government is almost universally supported. In a recent pollin Pennsylvania conducted by the American Heart Association, 71% of likely voters agreed that “…government closest to the people governs best” and a preemption law that takes away the ability of local governments to solve their own problems is a bad idea.
“The reason we got to 76% of the popular vote in Berkeley is because people believed in this policy. It came from the ground up,” said Sara Soka who was the campaign manager for the Berkeley Healthy Child Coalition.
And that’s why grassroots public health campaigners can still win on this issue and many more.
https://www.nytimes.com/2017/11/13/health/colombia-soda-tax-obesity.html
Planet Fat
Articles in this series are exploring the causes and the consequences of rising obesity rates around the world.
NESTLÉ GOES DOOR-TO-DOOR
How Big Business Got Brazil’s Poor Hooked on Junk Food
RESHAPING AFRICAN PALATES
Obesity Was Rising as Ghana Embraced Fast Food. Then Came KFC.
THE SODA TAX SHOWDOWN
She Took On Colombia’s Soda Industry. Then She Was Silenced.
A U.S.-STYLE DIET
A Nasty, Nafta-Related Surprise: Mexico’s Soaring Obesity
STRANGE BEDFELLOWS
In Asia’s Fattest Country, Nutritionists Take Money From Food Giants
A FATHER'S FIGHT
One Man’s Stand Against Junk
She Took On Colombia’s Soda Industry. Then She Was Silenced.
The debate over taxing sugary drinks has turned into a ferocious global
policy brawl. In Colombia, proponents faced intimidation and censorship.
Leer en español
By ANDREW JACOBS and
MATT RICHTEL
NOV. 13, 2017
BOGOTÁ, Colombia — It began with menacing phone calls, strange malfunctions of the office computers, and men in parked cars photographing the entrance to the small consumer advocacy group’s offices.
Then at dusk one day last December, Dr. Esperanza Cerón, the head of the organization, said she noticed two strange men on motorcycles trailing her Chevy sedan as she headed home from work. She tried to lose them in Bogotá’s rush-hour traffic, but they edged up to her car and pounded on the windows.
“If you don’t keep your mouth shut,” one man shouted, she recalled in a recent interview, “you know what the consequences will be.”
The episode, which Dr. Cerón reported to federal investigators, was reminiscent of the intimidation often used against those who challenged the drug cartels that once dominated Colombia. But the narcotics trade was not the target of Dr. Cerón and her colleagues. Their work had upset a different multibillion-dollar industry: the makers of soda and other sugar-sweetened beverages.
Their organization, Educar Consumidores, was the most visible proponent of a proposed 20 percent tax on sugary drinks that was heading for a vote that month in Colombia’s Legislature. The group had raised money, rallied allies to the cause and produced a provocative television ad that warned consumers how sugar-laden beverages can lead to obesity and diet-related illnesses like diabetes.
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diet-related illnesses like diabetes.
The backlash was fierce. A Colombian government agency, responding to a complaint by the nation’s leading soda company that called the ad misleading, ordered it off the air. Then the agency went further: It prohibited Dr. Cerón and her colleagues from publicly discussing the health risks of sugar, under penalty of a $250,000 fine.
Dr. Esperanza Cerón, director of Educar Consumidores, a group that campaigned for a tax on sugary drinks. Colombia’s consumer protection agency barred her from talking about the link between sugar and obesity. Credit Juan Arredondo for The New York Times
The battle over taxing sugar-sweetened beverages is becoming one of the world’s most ferocious policy brawls — a clash of science, politics and money in dozens of countries and cities.
“The industry sees sugary-drink taxes as an existential threat,” said Dr. James Krieger, executive director of Healthy Food America, which tracks beverage tax initiatives. In the United States, the industry has spent at least $107 million at the state and local levels since 2009 to beat back soda taxes and beverage warning labels, a new study found. Compared to the domestic tactics, Dr. Krieger said, overseas, “it’s much dirtier, much more bare-knuckled.”
The harassment of Dr. Cerón and her colleagues was never proven to be carried out by the industry, and federal prosecutors declined to investigate. In response to questions from The New York Times, Coke and Pepsi said they were not involved, and Postobón, the soda company that filed the complaint about the organization’s ad, deferred comment to The National Business Association of Colombia. The association, which represented national and international beverage makers on the soda tax issue, said it had nothing to do with the episodes.
The International Council of Beverages Associations, the parent organization of trade groups around the world fighting the taxes, would not directly answer the question about whether its allies in Colombia were connected to the alleged harassment, but it condemned such actions.
“We reject under any circumstance the improper influence or harassment of any individual or organization for any purpose, at any time, in any way,” Katherine W. Loatman, executive director of the organization, said in a statement.
The experience in Colombia may be the most extreme, but a juggernaut of industry opposition has killed or stalled soda tax proposals around the globe, including in Russia, Germany, Israel and New Zealand.
Nevertheless, the idea is gaining momentum; such levies have been enacted in 30 countries, including India, Saudi Arabia, South Africa, Thailand, Britain and Brunei. More than a billion people now live in places where such taxes have driven up the price of sugar-sweetened beverages.
The battles have been particularly intense in emerging markets as the industry seeks to make up for falling soda consumption in wealthier nations. Latin America has surpassed the United States as the world’s biggest soft-drink market, according to the World Health Organization, with sales of carbonated soft drinks doubling there since 2000 while they declined in the United States.
The beverage industry asserts that soda taxes unfairly burden the poor, cause higher unemployment by squeezing industry sales, and fail to achieve their policy goal: reducing obesity. Studies of soda taxes have shown they lead to a drop in sales of sugar-sweetened beverages — a 10 percent sales decline, for example, over the first two years of Mexico’s tax — however, such measures are so new that there is not yet evidence of their impact on health.
“Slapping a tax on our products and walking away won’t do anything about obesity in this country or globally,” said William Dermody, spokesman for the American Beverage Association, an industry trade group.
The soda industry claimed a tax on sugary drinks would harm mom-and-pop shops like this one in Bogotá. Credit Juan Arredondo for The New York Times
But public health organizations, including the W.H.O., cite soda taxes as one of the most effective policy tools for cutting consumption of what nutritionists call a “liquid candy” that has contributed to an epidemic of obesity and related health conditions around the world. Dr. Kathryn Backholer, an expert on the issue at Deakin University in Australia, said taxes on soda were “low-hanging fruit” in the fight against obesity, diabetes and other weight-related diseases because such drinks are easily categorized to tax and sensible to target because they “have little or no nutritional value.”
Dr. Backholer and other experts said the turning point for soda tax proponents came in 2014, when Mexico — Coca-Cola’s biggest consumer market by per capita consumption — approved a 10 percent tax.
Mexico also showcased how dirty the fight could get.
Last year, numerous advocates of a proposal to double Mexico’s tax to 20 percent received strings of upsetting and fraudulent texts from unknown numbers. One man got a message saying his daughter had been seriously injured; another found a text saying his wife was having an affair; a third received a link to a funeral home. Spyware was found on the phones. The proposal failed.
Elsewhere in the world, soda companies have assiduously worked their government connections and economic clout. In internal company emails leaked to an American watchdog group last year, Coke executives described strategies for winning over government ministers and other officials in Bosnia and Herzegovina, Ecuador, Portugal, and regions of Spain.
The Australian Beverages Council wrote in its 2016 annual report that fighting a soft drinks tax “has been consuming vast amounts of resources,” and that “our learnings from other markets through our international network tells us that these types of threats must be constantly challenged before they get before a parliament for debate.”
In Colombia, where soda is often cheaper than bottled water, the soda-tax fight took place in a key market for beverage makers. Sales volume of carbonated drinks here has climbed more than 25 percent over the past 15 years; during that same time in the United States, it fell 12 percent, according to Euromonitor, a market research firm.
Coke and Pepsi were far less visible in the Colombia battle, leaving the big national beverage company, Postobón, in the spotlight. Postobón, a drinks maker and distributor for Pepsi, is part of a huge conglomerate that includes sugar cane growers, sugar mills and the country’s biggest media company, RCN Televisión, which helped disseminate the anti-tax message. Postobón and RCN declined interview requests.
The stage was set for a clash between a powerful industry and a stubborn public advocate.
Showdown Over an Ad
In early 2016, Colombia, a nation of 49 million, was facing the unfamiliar prospect of stability and peace. After decades of civil war and narco-terrorism, Colombians were enjoying the fruits of an aggressive United States-backed military campaign that had largely decimated the country’s drug cartels. Unemployment was near historical lows, the poverty rate was dropping and millions were hopeful about the possibility of lasting peace with the country’s main rebel group, the FARC.
In March 2016, the country’s health minister, Alejandro Gaviria Uribe, proposed a 20 percent tax on soda and sugar-sweetened beverages — the equivalent of about 10 cents on a liter bottle — that became part of a larger tax overhaul backed by Colombia’s president and the Ministry of Finance.
“For the first time in our lives, we thought we might become a normal country and be able to deal with issues other than violence,” said Diana Guarnizo, a lawyer with Dejusticia, a rights group that helped promote the soda tax. “Here we were, an organization that had dealt with peace, violence, land reform and gross injustice, and suddenly we had the luxury to talk about what mothers are putting in their children’s lunchboxes.”
The measure was designed to inject $340 million a year into Colombia’s chronically underfunded national health care system, but Mr. Gaviria had a larger goal: to dampen soda consumption in a country with an obesity rate that had tripled since 1980 to 19 percent of adults. The fastest growth had occurred among Colombian youth from ages 5 to 17. Each year, 4,000 people age 30 to 70 die from obesity-related illnesses like heart disease and diabetes, the Health Ministry said.
Photo
Dr. Iván Darío Escobar, an endocrinologist, left, used a soda bottle for patient education in Bogotá. Right, a patient and her nutritionist at a monthly weigh-in.
A grocery store in Bogotá. The beverage industry says soda taxes unfairly burden the poor.
Credit Juan Arredondo for The New York Times
The issue attracted the attention of Dr. Cerón, whose 10-employee organization had previously worked on climate change, smoking restrictions and the lack of potable water in poor communities. Encouraged by the health minister’s soda tax announcement, they formed a coalition of three dozen civic organizations they called the Alliance for Food Health.
They received crucial support from Bloomberg Philanthropies, a foundation created by Michael Bloomberg, the former New York mayor, which dispatched experts from the United States. It also provided pivotal funding, including $260,000 for the public service ad — an amount nearly equal to Educar’s entire annual budget — and paid for enhanced security at the group’s offices.
Opinion polls showed that 70 percent of the public embraced the tax. Legislative backing was harder to come by, however: 42 legislators in the 268-seat Congress said they supported the measure.
The debate escalated in August, with Congress still months from a vote, when television stations across the country began airing a public service announcement in support of the tax. The 30-second spot, produced by Dr. Cerón’s group, used data from the W.H.O. and featured a smartly dressed man drinking a series of sugary beverages throughout the day. Four sweetened drinks a day, the ad said, could deliver up to 47 teaspoons of sugar. Then it showed an overweight couple, a gangrenous foot and what appeared to be a man in cardiac arrest, followed by an admonition. “Better to drink water, milk or teas without sugar,” the narrator said. “Take care of your life. Take it seriously.”
An Educar Consumidores worker handed out pamphlets on healthy eating in the Ciudad Kennedy district of Bogotá. Credit Juan Arredondo for The New York Times
Postobón, the soft drink company, promptly filed a complaint with the government’s consumer protection agency, the Superintendent of Industry and Commerce, claiming that the ad’s use of the teaspoon as a unit of measurement was imprecise and that it unfairly suggested that all sweetened drinks were unhealthy.
Nutrition experts countered that the ad was wholly consistent with established science showing the impact of excess sugar consumption on weight and metabolic diseases like diabetes, gout and heart disease. The Harvard School of Public Health has chronicled multiple studies backing up this assertion, including a point nutritionists make repeatedly: that sugary beverages lack nutritional value and add calories without leaving consumers feeling full.
Dr. Luis Fernando Gómez, a professor of preventive medicine at Javeriana University in Bogotá who backed the tax measure, said Postobón’s allegations about the commercial were disingenuous. “Every fact and figure cited in that ad was backed up by mainstream science,” he said.
But the head of the Colombian consumer protection agency, a presidential appointee, sided with the industry petitioners. Just two weeks later, in a decision that Colombian legal experts described as unusually swift, the agency ordered the commercial withdrawn.
Borrowing almost identical language from Postobón’s complaint — which had been filed by a company lawyer who had previously led the agency — the superintendent’s office said consumers had the right to truthful information, not messages that were “misleading, imprecise and confusing.”
The ruling went on to bar Educar Consumidores employees from speaking publicly about the links between sugar and obesity, an edict so sweeping it included the Health Ministry’s own research on the subject.
The consumer agency did not respond to requests for comment.
The actions stunned legal analysts and health advocates. “It was unprecedented,” said Ch’uya H. Lane, regional director for obesity prevention efforts at the Global Health Advocacy Incubator, which is affiliated with Bloomberg Philanthropies.
“We were completely shut down,” Dr. Cerón said. “Censored.”
Criminal Inquiry Over a Blog Post
Postobón is a unit of one of Colombia’s largest and most respected conglomerates, Organización Ardila Lülle. Founded in the early 1950s by Carlos Ardila Lülle, 87, Organización Ardila Lülle has helped define the country’s modern identity through a raft of companies that own a soccer team, an insurance company and the dealerships that sell Dodge, Jeep and Ford vehicles.
Postobón is a storied brand that sells a rainbow of homegrown drinks. Among its best-known products are a cola called Colombiana and Manzana Postobón, a century-old apple-flavored drink that is something of a national icon.
A delivery of soft drinks in Bogotá. Postobón, the leading beverage company in Colombia, is part of the conglomerate that owns an influential media company. Credit Juan Arredondo for The New York Times
Organización Ardila Lülle remained silent during the soda-tax debate, and company executives declined to be interviewed. Instead, Postobón, RCN and allies like the National Business Association of Colombia carried the message that the tax would cost jobs, decimate independent convenience shop owners and choke the economy.
“In Colombia, the sugar industry and the main media companies belong to the same economic conglomerates,” Mr. Gaviria, the health minister, said. “They have an intimidating power. And they used it.”
That fall, at least 90 lobbyists worked to sway legislators, according to a tally of visitor logs obtained by Educar Consumidores. During committee hearings on the measure, lobbyists often sat next to lawmakers, a flagrant violation of congressional rules, said Óscar Ospina Quintero, a legislator from the Green Alliance party. Mr. Ospina said he protested the lobbyists’ presence in the chamber but was rebuffed by congressional leaders.
“The response was fierce,” Mr. Gaviria said. “I remember that, during one of the debates, a senator said to me: ‘In all my years in Congress I’ve never seen a lobbying effort like this.’”
In October, not long after she was censored by the government, Dr. Cerón found a tactic she thought might keep attention on the subject without running afoul of the government’s order silencing her. In a blog item posted on the Alliance for Food Health website, she made fun of an RCN soap opera from 1980s called “Azúcar,” or Sugar, that was set in Colombia’s sugar cane heartland. Scrawled across a publicity poster for the show, she wrote, “It’s one thing to watch Sugar; it’s another to drink it in excess.”
An RCN lawyer demanded she delete the post, claiming it was intellectual property theft. She complied, but the network filed a complaint with federal prosecutors who, in turn, opened a criminal investigation. The case, still pending, carries a possible fine of $300,000.
“If they win,” she said. “I will be financially ruined.”
It was around this time that employees at Educar’s offices began to complain about echoes and other voices on their cellphones. They suspected they might be under surveillance. Others found it hard to use the internet in the office. In October, Dr. Cerón’s office phone ceased functioning entirely. “Sometimes we could not work at all because our laptops would stop following orders and the mouse would just do what it wanted,” Diana Vivas, the group’s lawyer, said.
Ms. Lane of Bloomberg Philanthropies was so concerned that she stopped using email and the phone to discuss strategy with Educar. Instead, she moved communications to some of the same encrypted apps used after the surveillance of soda-tax advocates was discovered in Mexico.
Called in to investigate, Andrés Erazo, Educar’s longtime tech consultant, said he discovered that antivirus software on workplace computers had been disabled. He also found spyware on the office router that gave an unknown outsider access to the organization’s web traffic and online communication. According to Mr. Erazo, three cellphones — including those used by Dr. Cerón and Ms. Vivas — had been compromised by spyware.
Mr. Erazo urged Dr. Cerón to buy new cellphones but she refused. “If they’re listening to us, what are they going to hear?” he recalled her telling him. “We’re talking about a public health campaign!”
An independent examination of Educar’s computers conducted for The New York Times by CSIETE, an internet security firm in Bogotá, did not turn up any malware. Giovanni Cruz Forero, the firm’s chief executive, said Educar employees had reformated one of the two office laptops the firm examined, which would have largely erased evidence of tampering. Mr. Cruz said it was also possible intruders took steps to erase their digital footprints. The firm did not examine cellphones of Educar employees.
One morning in mid-November, Dr. Cerón was startled awake at 5 a.m. by a call to her cellphone.
“Shut up, you old wench,” the caller yelled, according to a report she filed with the Fiscal General de la Nación, Colombia’s prosecutorial agency.
In early December, Dr. Cerón was walking to the gym when a man, his face obscured by a hooded sweatshirt, accosted her with the same message. “Cállese,” he yelled before walking away, or, “keep your mouth shut.”
She reported both episodes to prosecutors.
A spokesman for the prosecutorial agency declined to comment on Dr. Céron’s complaints, citing privacy rules that bar discussion of cases with anyone not directly involved.
Dr. Cerón stopped driving alone. And she pressed the local news media to cover the intimidation, but it was facing its own challenges from tax opponents.
Pressuring the Media
With its cordon of armed guards, bomb-sniffing dogs and airport-style X-ray machines, the headquarters of Colombia’s oldest newspaper, El Espectador, is among the most heavily fortified compounds in the country. The need for such measures is driven home by a sixth-floor display: showcased behind glass is a yellowing front page reporting the assassination of El Espectador’s editor, Guillermo Cano, who was gunned down on Dec. 17, 1986, as he drove home from work.
Three years later, a huge truck bomb shattered the newspaper’s offices, killing a reporter and wounding 83 others. During the 1980s and 1990s, violence claimed the lives of a dozen El Espectador employees — all victims of Colombian drug cartels angered by the newspaper’s unflinching coverage.
El Espectador news editors said they sought to cover the soda tax fight evenhandedly in the news pages, even as the paper supported the tax in its editorials.
Fidel Cano, center, publisher of El Espectador, in the paper’s newsroom in Bogotá. Credit Juan Arredondo for The New York Times
Industry executives were not happy with the paper’s stance, but they got especially upset when it produced a video, part of a biweekly commentary called La Pulla, that lampooned tax opponents for ignoring scientific evidence about the risks of excess sugar.
“Once we published the video, things got crazy,” the paper’s health and science editor, Pablo Correa, said.
With a tone both cheeky and indignant, La Pulla takes on the most contentious issues of the day. In the soda tax episode, the host, María Paulina Baena, with granules of sugar flecking her lips, skewered the industry and members of Congress for spreading misinformation about the proposed tax. She ended the video with the image of a Sprite bottle and a tagline from one of the popular ads for the drink: “That’s just the way it is.”
The video was posted just before midnight on Dec. 15, quickly drawing 500,000 views. In the morning, Fidel Cano, the publisher of El Espectador and a nephew of the paper’s slain editor, said he had received a call from a senior advertising executive at the newspaper who told him a representative from Coca-Cola had called in protest and demanded that the Sprite bottle be removed.
Mr. Cano winced recalling what came next. With the prospect of litigation and lost ad revenue, he says he ordered the bottle edited out. In a small act of defiance, he allowed the Sprite advertisement tagline to remain.
The altered video went viral, drawing more than two million views and prompting a public discussion about censorship and the power of the soda industry.
“Did they win?” Mr. Cano reflected. “Not really.”
Continue reading the main story
Photo
María Paulina Baena, a journalist at El Espectador who writes and presents the online video commentary La Pulla. Credit Juan Arredondo for The New York Times
Reached by phone, the newspaper’s vice president for advertising, Mauricio Umaña, disputed Mr. Cano’s account, saying he had not received a call from Coca-Cola or any other soda company executive.
Other media outlets felt the industry’s pressure.
At the Colombian branch of the online news site Vice, the editorial staff clashed with advertising executives over their efforts to squelch a column criticizing the soda industry. Vice had previously run two opinion pieces in favor of the soda tax and the disputed third column did ultimately run, though not on the home page, making it hard for readers to find.
The incident was part of what prompted Vice Colombia’s founding editor, Juan Camilo Maldonado, to resign. Mr. Maldonado declined to be interviewed for this article but colleagues with direct knowledge of the incident said he was dismayed the company would cave to pressure from advertisers.
A spokesman for Vice did not address the reasons for Mr. Maldonado’s resignation, but said, “The fact that all of the stories were published and were critical of the soda industry speaks for itself.”
On the last day of 2016, opponents of the tax were victorious. Using a complex procedural maneuver, congressional leaders killed the soda tax, dropping it from the larger tax overhaul package.
“The problem isn’t just sugar,” said Iván Duque, a senator from the right-leaning Democratic Center party and a contender in next year’s presidential race, who was a vocal critic of the tax. “We need a national plan to fight sedentary lifestyles, better product labeling and education efforts that teach people to eat more fruit, fish and vegetables.”
A New Drink
Dr. Cerón and her team got a Pyrrhic victory two weeks ago when the country’s Constitutional Court overturned the consumer agency’s decision to silence Educar and ordered the agency to “abstain from censoring any other ad related to public health in the future,” according to the ruling.
“It was a great victory for free speech in Colombia,” Dr. Cerón said. “The only pity is it came too late.”
Photo
Dr. Cerón, right, at the Educar Consumidores headquarters in Bogotá. The Constitutional Court two weeks ago overturned the decision that silenced the group. Credit Juan Arredondo for The New York Times
Last summer, Postobón began what it called “a new social strategy focused on nutrition.” The campaign, unveiled in Manaure, an impoverished city in Colombia’s far north, revolves around Kufu, a new mango-flavored beverage formulated for children. It is part of the industry’s goal of tackling public health through voluntary efforts.
Postobón lauded the drink’s added vitamins and minerals, saying they would “promote cognitive development, strengthen immunity and promote healthy bones,” according to a glowing account of the event published by the newspaper La República, acquired last year by Postobón’s parent company, Organización Ardila Lülle.
Postobón said it would spend $120,000 to evaluate the initiative, which would provide free Kufu each day to thousands of poor children in the region.
The article in La República, however, did not mention one key ingredient: sugar. According to the label on the drink, one juice box of it contains 13 grams of sugar, more than half the daily recommended level for children.
http://www.alternet.org/food/berkeley-soda-tax-working-driving-down-consumption-fifth
Jennifer Falbe and other investigators from Kristin Madson's group at UC Berkeley have just produced an analysis of the effects of the Berkeley soda tax on consumption patterns.
They surveyed people in low-income communities before and after the tax went into effect. The result: an overall 21 percent decline in reported soda consumption in low-income Berkeley neighborhoods versus a 4 percent increase in equivalent neighborhoods in Oakland and San Francisco.
The Los Angeles Times breaks out these figures:
In Oakland and San Francisco, which have not yet passed a tax, sales of regular sodas went up by 10 percent.
Other findings, as reported by Healthy Food America:
- During one of the hottest summers on record, Berkeley residents reported drinking 63 percent more bottled water, while comparison cities saw increases of just 19 percent.
- Only 2 percent of those surveyed reported crossing city lines to avoid the tax.
- The biggest drops came in consumption of soda (26 percent) and sports drinks (36 percent).
Agricultural economist Parke Wilde at Tufts views this study as empirical evidence for the benefits of taxes. He writes on his U.S. Food Policy blog that it's time for his ag econ colleagues to take the benefits of taxes seriously:
There is a long tradition in my profession of doubting the potential impact of such taxes … Oklahoma State University economist Jayson Lusk, who also is president of the Agricultural and Applied Economics Association (AAEA), has blogged several times about soda taxes, agreeing with most of the Tamar Haspel column in the Washington Post and concluding stridently: "I'm sorry, but if my choice is between nothing and a policy that is paternalistic, regressive, will create economic distortions and deadweight loss, and is unlikely to have any significant effects on public health, I choose nothing" (emphasis added).
Wilde points out that Lusk has now modified those comments in a blog post.
All that said, I'm more than willing to accept the finding that the Berkeley city soda tax caused soda consumption to fall. The much more difficult question is: are Berkeley residents better off?
Yes, they are.
http://www.motherjones.com/environment/2012/07/meet-beverage-industry-group-bankrolls-soda-tax-opposition
mojo
Beverage Industry Group Bankrolls Soda Tax Opposition
In Richmond, California, the American Beverage Association is fighting a proposed sugary-drink tax with a "community coalition."
KATE SHEPPARD JUL. 25, 2012 6:00 AM
Soda regulation has been in the spotlight for a while now. The city of San Francisco brought up the idea of a soda tax back in 2009, though it was killed before legislation was even introduced. New York City Mayor Michael Bloomberg's recent proposal to limit the size of sodas in the city has gotten New Yorkers pretty worked up. And now, Richmond, California, a Bay Area city with a population of just 105,000 and a gritty, working-class reputation, is moving closer to instituting its own measure to curb consumption. Will it succeed? Not if the beverage lobby has anything to say about it.
In May, Richmond's city council approved a ballot measure that will ask voters this November whether they want to impose a fee of $0.01 per ounce on the retail establishments that vend sugar-sweetened beverages, in the interest of reducing the high obesity and diabetes rates in the city. The new tax would put a new license fee on grocers, restaurants, and anyone else who sells not just soda, but sports drinks, teas, fruit juices, and anything else with added sugars. As my colleague Maddie Oatman reported, this kind of tax can have a measurable impact on consumption.
The Richmond measure came from city councilman and retired cardiologist Jeff Ritterman. "These sugar-sweetened beverages are a health menace, and we have to do something very bold, both to decrease consumption and to invest in programs and projects that promote healthy eating and active living," he told Mother Jones.
The Richmond proposal swiftly drew criticism from the American Beverage Association, the primary trade group representing major nonalcoholic drink manufacturers like Coca-Cola and Pepsi. ABA is no fan of the idea of a soda tax, calling it "misguided" and arguing that it "will not reduce obesity, nor will it have a truly meaningful impact on obesity-related health conditions such as diabetes, coronary disease, or metabolic syndrome." According to the Center for Science in the Public Interest, the ABA and its members have spent up to $70 million on lobbying and ad campaigns to kill other proposed soda taxes.
In the weeks since the council approved the ballot measure, the ABA has turned its attention—and money—toward Richmond, providing funding for a political campaign committee called the "Community Coalition Against Beverage Taxes." The campaign includes a slick website asking people to vote "no" on the ballot measure, a pre-fab letter to councilmen and the mayor, and paid "organizers" going door-to-door to collect signatures. They've also created T-shirts and signs for people to hold up at council meetings that read "No to Higher Food Costs" and sent street teams to local ethnic celebrations like Cinco de Mayo and Juneteenth to rally community members against the tax.
The campaign filing for the Community Coalition Against Beverage Taxes lists only one specific funder—the ABA—as well as "thousands of Richmond residents, labor, and business against unfair taxes." ABA's vice president of public affairs Karen Hanrettydeclined to put a dollar amount on the support it has given to the campaign, and an idea of how much money they've invested in it might not be available until the campaign disclosure information is released at the end of July. But it's clear that the association can put quite a bit of money into campaigns if it wants; in 2009 it spent nearly $19 million on federal lobbying, its biggest year to date, to keep a soda tax out of the health care reform bill.
The Community Coalition Against Beverage Taxes' Flickr account features photos of cute kids and families enjoying soft drinks. Its tweets include, "'Sugar Tax' is a 'tax on poor people.'"
San Francisco-based public affairs consulting firm Barnes Mosher Whitehurst Lauter & Partners was hired to manage the campaign. The firm's vice president of media and communications Chuck Finnie confirmed that ABA contributes the "principal funding" to the initiative, retaining his firm to coordinate the petitions, paid media, mails, and public relations. The campaign has also retained top-flight California campaign law firmNielsen MerksamerParrinello Gross & Leoni, LLP, and as California Watch reported last month, was able to rent an office in downtown Richmond to house the campaign and have paid "organizers" in the community.
Neither Finnie nor Hanretty hid the fact that the ABA is involved with the campaign, but ABA's role is not always readily apparent in the campaign's public face. The Community Coalition Against Beverage Taxes has a website, Facebook page, a Flickr account featuring photos of cute kids and families enjoying soft drinks, and a Twitter feed, which tweets things like, "'Sugar Tax' is a 'tax on poor people.'" None of them mention that the campaign is supported by ABA. The website was registered by Goddard Claussen Public Affairs, the DC-based consulting firm (which was recently renamed Goddard Gunster) that has handled previous anti-soda-tax efforts in New York in 2010 on behalf of ABA. The firm is also running the ABA's astroturf campaign "New Yorkers for Beverage Choices," which is trying to stop Bloomberg's new proposed ounce limit on sodas.
Finnie argues that the soda tax is not an excise tax (like those on cigarettes); rather, it's a business licensing fee that will raise the costs of doing business in Richmond overall and increase consumer prices. In the course of our 30-minute conversation, Finnie called the tax a "publicity stunt" four times and accused the tax proponents of "demagoguery" and of "demonizing" sugar-sweetened beverages three times each. "We're always going to represent the beverage industry, and I think fight for people's freedom of choice to buy the beverages that they think fit their lifestyle," echoed ABA's Hanretty. "That's been the case all around the country."
In addition to the ABA, the soda tax has some homegrown opponents too. The most vocal among them has been City Councilman Courtland "Corky" Boozé, one of two councilmen who voted against putting it on the ballot. He argues that the tax will burden the city's poor residents, doesn't deal with more important problems in the city like unemployment and crime, and will only be used to address the city's budget deficit. "We have a pretty large community of economically suppressed people," said Boozé in an interview with Mother Jones. "I'm disappointed because it's a regressive tax." The local Teamsters, too, have come out against the tax, arguing that diminished soda sales might lead to job loss among members.
As of July 23, Ritterman said that Richmond Fit for Life, his campaign in support of the tax, had just $10,000 on hand. The councilman can often be found at public events hauling 40 pounds of sugar around in a wagon—which is about how much sugar the average American consumes each year.
Harold Goldstein, the executive director of the California Center for Public Health Advocacy, said that passing the tax would be a "game-changer." Unlike in other cities, where the idea of a soda tax has come down from the city council or mayor, the question of whether to impose a tax has been posed to the public at large. "Across the country people are watching what's going on in Richmond," he said. "It's pretty clear that the beverage industry knows that would open the floodgates for cities all around the country to impose taxes in their city."
==
==
Sometimes the actions of food companies defy credulity. The Community Coalition Against Beverage Taxes, a "grassroots" group funded by the American Beverage Association, has taken the city of Richmond, California to court to block it from requiring disclosure of funding sources in election campaigns.
In case you haven't been following this situation, the Richmond city council got a soda tax initiative ("Measure N") placed on the November ballot. Richmond is a low-income, mixed-race city (80% non-white), with an 11% unemployment rate, and an average household income of $23,000 a year. It population is largely obese and drinks a lot of soda.
You would hardly think a city like this would get on the radar of Big Soda, but you would be wrong. For details, we have to thank Robert Rogers who writes for the local Contra Costa Times and has been following the money.
Because California requires lobbyists to register,Rogers has been able to get hard numberson the relative spending of anti-tax forces and those who favor the tax. The difference is impressive.
The city of Richmond must have suspected that something like this would happen because the city council passed an ordinance that requires special interest groups to disclose who funds them in campaign literature. They must list their top five funders. You might think this idea entirely appropriate to a democratic society, but the American Beverage Association (translation: Coca-Cola and PepsiCo) does not.
According to Rogers' accounton September 4, Big Soda has sued the city in federal court to stop it from insisting that campaigns disclose who funds them.
On what grounds? The First Amendment, of course:
The suit, filed in federal court in San Francisco on Aug. 30, seeks an order barring the city from imposing its campaign ordinance on the Community Coalition Against Beverage Taxes, a declaration that the groups' First Amendment rights were violated and money to cover court costs.
The coalition is funded mostly by the American Beverage Association and has spent more than $350,000 locally in an effort to defeat a November ballot measure that could impose a penny-per-ounce tax on sales of all sugar-sweetened beverages in the city.
...Coalition spokesman Chuck Finnie said Tuesday that the law itself is unconstitutional and should not be applied to the anti-soda tax groups.
"The law in question is being enforced to prevent opponents of an unfair, misleading and misguided tax from being able to communicate effectively with Richmond voters," Finnie said. "The sponsors of the Measure N tax don't want voters to hear how the tax is going to raise grocery bills, hurt local businesses on which livelihoods depend, and the fact that city politicians would be free to spend all of the money raised by Measure N in any way they see fit and that not one penny must be used to fund anti-obesity efforts."
In other words, revealing funding sources prevents "effective communication."
The court will hear this suit on Friday. Stay tuned. In the meantime, here are the relevant documents, thanks to Robert Rogers:
- Richmond's campaign disclosure ordinance
- Soda-tax opponent's application for temporary restraining order
- Soda-tax opponent's lawsuit against Richmond campaign disclosure law
ref 404
http://www.mercurynews.com/breaking-news/ci_21466640/document-soda-tax-opponents-lawsuit-against-richmond-campaign?source=pkg
Document: Soda-tax opponent's lawsuit against Richmond campaign disclosure law
Contra Costa Times
POSTED: 09/04/2012 04:32:25 PM PDT
==
Richmond anti-soda tax committee sues for federal protection from city's campaign disclosure rules
By Robert Rogers
Contra Costa Times
POSTED: 09/04/2012 04:24:26 PM PDT
UPDATED: 09/05/2012 06:43:52 AM PDT pix]
https://www.linkedin.com/in/robert-rogers-57087b31
RICHMOND -- The beverage industry-funded campaign against a local ballot measure has sued the city in federal court, arguing that Richmond's campaign-disclosure laws targeting special interest groups violate the First Amendment.
The suit, filed in federal court in San Francisco on Aug. 30, seeks an order barring the city from imposing its campaign ordinance on the Community Coalition Against Beverage Taxes, a declaration that the groups' First Amendment rights were violated and money to cover court costs.
The coalition is funded mostly by the American Beverage Association, and has spent more than $350,000 locally in an effort to defeat a November ballot measure that could impose a penny-per-ounce tax on sales of all sugar-sweetened beverages in the city.
"Plaintiffs urgently seek this court's protection from the city of Richmond's threat," reads the lawsuit, filed by Christopher Skinnell of Nielsen Merksamer Parrinello Gross & Leoni LLP, "to 'strictly enforce' against them an inapplicable and unconstitutional ordinance that would impair their efforts to speak in opposition to a controversial ballot measure proposed by Richmond's mayor and City Council."
The ordinance, passed unanimously by the council in June, requires all mass mailings be accompanied by the words "Major funding by," followed by the five largest contributors, with the information on the "front page" of all distributed material.
Councilman Tom Butt wrote on his public e-newsletter that he filed a complaint with City Attorney Bruce Goodmiller after seeing mailers that appeared to not comply with the law.
"The purpose of the ordinance, of course, is to clearly inform voters who is behind political campaigns that are intentionally disguised as grass roots local efforts," Butt wrote. "Big Soda will spend over a million dollars in Richmond while trying to make it look like a down home campaign featuring local spokespersons, businesses and organizations."
The anti-tax campaign committee responded to the city's orders to comply by filing suit.
Coalition spokesman Chuck Finniesaid Tuesday that the law itself is unconstitutional, and should not be applied to the anti-soda tax groups.
"The law in question is being enforced to prevent opponents of an unfair, misleading and misguided tax from being able to communicate effectively with Richmond voters," Finnie said. "The sponsors of the Measure N tax don't want voters to hear how the tax is going to raise grocery bills, hurt local businesses on which livelihoods depend, and the fact that city politicians would be free to spend all of the money raised by Measure N in any way they see fit and that not one penny must be used to fund anti-obesity efforts."
Measure N, the name for the 1-cent-per ounce tax, has a companion measure that advises future councils to use tax proceeds on sports and anti-obesity programs. Richmond has the highest rate of childhood obesity in Contra Costa County.
The tax, which would be paid by merchants based on how many ounces of sugar-sweetened beverages they sell, would generate an estimated $3 million annually. Opponents say it would hurt the poor and businesses and do little to curb consumption of sugary drinks.
City Attorney Bruce Goodmiller wrote in an internal city email that "we are working ... to prepare the city's initial response to the lawsuit due Wednesday at 3 p.m."
The hearing on the motion is scheduled for 10 a.m. Friday in U.S. District Court in San Francisco.
Contact Robert Rogers at 510-262-2726 or at rrogers@bayareanewsgroup.com. Follow him at http://twitter.com/roberthrogers
--
jine 2012 ca watch
RICHMOND – A powerful Washington, D.C., trade organization that represents PepsiCo, Coca-Cola and other major beverage companies is helping fund a Richmond group that is fighting a November ballot measure to raise taxes on soda and other sweetened beverages, interviews and records show.
A Richmond resident, Rosa Lara, is going door to door identifying herself as an organizer with the Community Coalition Against Beverage Taxes and collecting signatures on a petition. Although Lara doesn't mention it unless specifically asked, her group is supported by the American Beverage Association, the industry's main trade organization.
In May, Lara presented the Richmond City Council with a petition that she said included 900 signatures against the sweetened-beverage tax. Holding up a pile of papers, she also told the council that 100 businesses had signed up to oppose the measure.
“We only have one grocery store. What’s going to happen to us? We’re going to have to walk,” Lara told the council. “We don’t have the resources to go out of the city. I’ve lived here my whole life – I haven’t seen changes. We need to make a change for the community. This isn’t the way.”
Lara, who also presented her case to the council in Spanish, said she represented the Community Coalition Against Beverage Taxes, but did not note the beverage association was helping fund her petition drive.
The city council subsequently voted to place the soda tax on the November ballot. The measure would raise an estimated $2 million to $8 million, which advocates want used for obesity programs, school fruit and vegetable gardens, and playing fields. The tax would apply to soft drinks and other beverages with added sugar.
In an interview, Lara said she does not mention the American Beverage Association funding when she is collecting signatures. But if asked, Lara said she will acknowledge that she's a paid community organizer.
In a brief statement, Karen Hanretty, vice president of public affairs for the American Beverage Association, said: "ABA is and will continue supporting the growing community coalition that includes Teamsters and approximately 145 businesses against the proposed beverage tax in Richmond."“What I tell them is I live in the community,” she said. “I’ve lived here my whole life. I tell them I’m with the Community Coalition Against Beverage Taxes, and I’m a community organizer. Most of the people that I talk to ... know me already, they know what I do, so I really don’t have to explain who I am.”
Representatives with public relations firm Goddard Gunster, which represents the American Beverage Association, did not return calls for comment.
But Chuck Finnie, a vice president of the San Francisco public relations firm Barnes Mosher Whitehurst Lauter & Partners, confirmed in an interview that his firm is working for the Community Coalition Against Beverage Taxes and rented the office across from the Richmond city hall on behalf of the coalition.
“There are stakeholders nationwide who care about what happens in Richmond,” including soft drink makers, bottlers, distributors, retailers and local union workers, Finnie said.
Barnes Mosher partner Sam Lauter is registered as an American Beverage Association lobbyist in San Francisco. Finnie declined to say which organization initially retained the firm but said public campaign finance disclosures due this month will indicate who is funding the coalition and where its money is going.
At the Richmond City Council meeting, Lara also did not mention her association with the beverage lobbying group, though the petition listed it as a funder and member of the Community Coalition Against Beverage Taxes. Last week, the coalition filed documents with the Richmond city clerk indicating it is sponsored by the American Beverage Association, though as of Monday, the coalition’s website did not mention the group.
The website’s domain is registered under Goddard Claussen Public Affairs in Washington. The beverage association hired the same public relations company, now known as Goddard Gunster, when former New York Gov. David Paterson proposed a similar tax in that state.
A page on the Goddard Gunster website says the company has worked on behalf of the food and beverage industries against fat and soda taxes since 2009. “Today as the food and beverage tax battles wage on state-by-state, you will find us right there every step of the way,” the website reads.
According to Finnie, rallying the community “is how elections are won and lost in Richmond.”
“They’re won and lost by organizing voters, bringing the debate to the local level, to the street, and talking with people one on one," he said. "And we will have built a coalition of thousands of voters before this is over to oppose the tax.”
The office rented by Barnes Mosher previously served as campaign headquarters for Richmond City Council Member Corky Boozé, an outspoken soda-tax opponent. Boozé has appeared on Fox News and PBS and was quoted in The New York Times this month speaking against the tax. The office was vacant when Lara approached Boozé to ask who its landlord was, according to Boozé.
The councilman said he was unaware that either the American Beverage Association or Barnes Mosher had any involvement in the anti-tax effort.
Jeff Ritterman, the cardiologist-turned-council member spearheading the fight for the sweetened-beverage tax, said he, too, was unaware that the American Beverage Association had entered the local fray, but he said he is not surprised.
“I think it says that there’s intense interest from people outside of Richmond, primarily the beverage industry, to defeat the measure and that they’re willing to commit significant resources to do that,” said Ritterman, who hopes the tax will encourage children to reduce their consumption of sugary drinks and cut rates of obesity, diabetes and other illnesses.
In Richmond, 52 percent of schoolchildren are overweight or obese, according to Contra Costa County Health Services statistics. Among adults, 58 percent of the population is obese or overweight.
Ritterman has started his own group, Richmond Fit for Life, to fundraise for the pro-tax effort. Juan Reardon, an activist working with Ritterman, said that as of Monday, the group had raised about $6,000. Reardon said the group does not have any institutional support but would welcome it.
As for the American Beverage Association, Ritterman said: “I think the sad thing is that they recruit local people who work with them when in fact the end result of what they’re doing hurts our children and hurts our community.”
The Community Coalition Against Beverage Taxes disagrees. On a petition to gather supporters, the group told Richmond business owners: “Some politicians say the money will solve the city’s obesity problem, but there is no guarantee the money will actually be spent on children’s health.”
“Their ‘promise’ is a bait-and-switch tax to get voters to approve their tax hike,” the petition said. “The city council should pay attention to real problems like unemployment, violent crimes, and gangs.”
Clarification: This story has been updated to reflect that advocates want the tax measure to pay for obesity programs, rather than mandating such funding.
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https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3087&context=facpub
2018 Big Food and Soda Versus Public Health: Industry Litigation Against Local Government Regulations to Promote Healthy Diets
Sarah A. Roache Georgetown University Law Center, sarah.roache@law.georgetown.edu Charles Platkin School of Urban Public Health, City University of New York, cplatkin@hunter.cuny.edu Lawrence O. Gostin Georgetown University, gostin@law.georgetown.edu Cara Kaplan Fordham Law School, ckaplan7@law.fordham.edu
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D. San Francisco Soda Warning Ordinance
In 2015, San Francisco became the first United States jurisdiction to pass legislation requiring soda companies to include a statement on advertisements warning of the health impacts of consuming sugar sweetened beverages.181 Specifically, the ordinance required companies to place warnings on advertisements on billboards, vehicles, and similar structures, stating: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”182
The ordinance required that this warning occupy twenty percent of the total advertisement space.183 It applied to advertisements for non-alcoholic beverages containing caloric sweeteners and more than twenty-five calories per twelve ounces of beverage, with exemptions for milk, milk alternatives, and 100% natural fruit and vegetable juices.184 San Francisco’s purpose in requiring the warning was to “inform the public of the presence of added sugars and thus promote informed consumer choice that may result in reduced caloric intake and improved diet and health, thereby reducing illnesses to which [sugar-sweetened beverages] contribute and associated economic burdens.”185
Shortly after the City passed the ordinance, the ABA, the California Retailers Association, and the California State Outdoor Advertising Association filed a suit in the United States District Court, Northern District of California, to preliminarily enjoin the ordinance, alleging that it violated the plaintiffs’ freedom of speech and unjustly targeted sugar-sweetened beverages as a contributing factor to the obesity epidemic.186 To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”187 At the district court level, the judge found that the plaintiffs were unlikely to succeed on the merits of their First Amendment claim and were unlikely to suffer irreparable harm if the ordinance went into effect.188 Furthermore, the district court found that even if the plaintiffs may succeed on the merits, the balancing test would weigh in favor of denying the injunction.189
The district court noted that the city had a reasonable basis to enforce the ordinance due to its interest in public health and safety.190 The plaintiffs subsequently appealed the decision to the Ninth Circuit Court of Appeals,which reversed the district court’s decision and upheld the preliminary injunction to enjoin the San Francisco ordinance.191 First, the court of appeals found that the plaintiffs were likely to succeed on the merits of their First Amendment claims.192 The plaintiffs claimed that the warning label requirements infringed on their First Amendment right to freedom of speech.193 While the First Amendment freedom of speech protections may traditionally be associated with individual liberty, the U.S. Supreme Court has confirmed that these protections extend to commercial speech.194
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Regulations on the content of noncommercial speech are subject to strict scrutiny, meaning they are “presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”195 Regulations on commercial speech, such as sugary drink advertisements, are subject to a lesser standard.196 The lesser standard of scrutiny flows from the government’s “legitimate interest in protecting consumers from commercial harms.”197 The level of scrutiny that applies to regulations on commercial speech depends on the nature of the regulation.198 Restrictions on “nonmisleading commercial speech regarding lawful activity” are subject to intermediate scrutiny.199
Regulations that compel a disclosure, rather than affirmatively limit speech, are subject to the lesser standard of scrutiny set out by the Supreme Court in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. 200 Here, the Ninth Circuit determined that the warning label constituted a compelled disclosure and, therefore, applied the Zauderer test.201 The Zauderer test has three components—the compelled speech (1) must be purely factual and uncontroversial; (2) must not be unduly burdensome such that it may chill protected speech; and (3) must be reasonably related to a substantial government interest.202 The Ninth Circuit found that the warning was not purely factual or uncontroversial because it “convey[ed] the message that sugar-sweetened beverages contribute to [certain] health conditions regardless of the quantity consumed or other lifestyle choices.”203 The judgment suggested that the warning would likely satisfy the first
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component of the Zauderer test if it stated that “overconsumption of sugar-sweetened beverages contributes to obesity, diabetes, and tooth decay” or “consumption of sugar-sweetened beverages may contribute to obesity, diabetes, and tooth decay.”204 The Ninth Circuit also held that the “black box warning overwhelm[ed] the other visual elements in the advertisements” so much so that the compelled disclosure was “unduly burdensome” and would chill protected commercial speech in violation of the second component of the Zauderer test.205
Having ruled that San Francisco’s required warning failed the first two components of the Zauderer test, the court ruled that the plaintiffs would likely succeed on the merits of their First Amendment claim.206 After establishing that the plaintiffs would likely succeed on the merits, the court then turned to the remaining three factors that determine whether a plaintiff is entitled to a preliminary injunction. The court found that the plaintiffs would likely suffer irreparable harm because they had made a colorable First Amendment claim.207 Next, the court balanced the hardships of each party and referred back to its conclusion that the plaintiffs were likely to succeed on the merits of their First Amendment claim.208 Finally, the court examined whether the injunction would be in the public interest and found that the public has a strong interest in upholding First Amendment principles.209 Therefore, the Ninth Circuit held that the
plaintiffs met the requirements for seeking a preliminary injunction and accordingly reversed the district court’s decision and granted the motion.210 Public health and health law organizations, including the American Heart Association and the Public Health Law Center, filed amicus curiae briefs in the district court and the court of appeals.211 The briefs argued that the accuracy of the warnings is scientifically well established and that the warnings should easily survive review under the Zauderer framework.212 According to the Public Health Law Center, the court of appeals’ judgment relied on evidence produced by the industry that contradicts the well-established scientific evidence on the health impacts of sugary beverages that was presented in the amicus curiae briefs.213
In October 2017, following the court of appeals’ ruling, the Public Health Law Center, together with nine other tobacco control and public health organizations, filed a further amicus brief requesting an en banc review by an expanded eleven-judge panel of the court of appeals.214 The brief argued that the court of appeals’ original decision misinterpreted the Zauderer test, jeopardizing government mandated public health warnings, including federal tobacco warnings.215 For example, the brief argues that the decision’s mischaracterization of the evidence-based warnings as “disputed policy views” may be used by the tobacco industry to challenge warnings mandated by the federal government.216 The brief also calls for the court to clarify that the requirement for a warning covering twenty percent of an advertisement does not render the regulation per-se unconstitutional.217 Federal law requires that some tobacco warnings occupy more than twenty percent of the packaging, meaning
the industry could cite the Ninth Circuit decision in support of a claim that tobacco warnings are unduly burdensome under the Zauderer test, rendering them unconstitutional.218 The San Francisco soda warnings litigation shows that calling into question well-established evidence can help industry undermine evidence-based warnings, threatening federal, state, and local efforts to protect consumers from harmful commercial goods. The case confirms the importance of courts’ interpretation of complex scientific evidence in the context of First Amendment challenges to public health-based restrictions on commercial speech, and the need for governments to produce clear and convincing evidence in support of their regulations. In January 2018, the Ninth Circuit Court of Appeals agreed to hear the matter en banc. (219). An eleven-judge panel will further weigh the protection of commercial speech against the government’s interest in regulating advertisements to protect public health, providing further opportunity for San Francisco to defend its evidence-based warnings.220
....Many of the legal bases and arguments used by the food and beverage industry to challenge interventions to promote healthier diets reflect those used by the tobacco industry to challenge tobacco control laws.235 An analysis of tobacco industry litigation to deter local public health measures identified preemption as a common basis for successful legal challenges.236 As with the Cook County and Philadelphia soda taxes, the tobacco industry has challenged tobacco taxes on the basis that they violate tax uniformity clauses of state constitutions.237
Like the San Francisco soda warnings litigation, the tobacco industry has invoked the First Amendment to challenge federal regulations requiring tobacco companies to include graphic images as part of warnings on tobacco packages.238 The soda industry’s efforts to contradict or question scientific evidence surrounding the health impacts of their products and the effectiveness of government interventions reflect a long history of similar conduct
by the tobacco industry.239 Acknowledging differences between the tobacco industry 240 and the food and beverage industry, and their respective products, tobacco litigation is another source of information for public officials working to ensure the legal viability of interventions to promote healthier diets.
note: 238. See supra Section IV.D. See generally R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 845 F. Supp. 2d 266 (D.C. 2012) (holding that a federal regulation requiring tobacco companies to include graphic images violated the First Amendment).