A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes

Katherine Pratt

Loyola Law School Los Angeles

November 5, 2012

Tulane Law Review, Vol. 87, No. 73, 2012
Loyola-LA Legal Studies Paper No. 2012-44

This Article constructively critiques the two arguments that public health advocates have made in support of anti-obesity soda taxes or junk food taxes. Part II discusses and critiques the first argument, an economic externalities argument that government should tax soda or junk food to internalize the disproportionately high health care costs of obesity. Part II also explores alternative economic internalities argument for food or soda taxes, with a focus on incomplete information, bounded rationality, and bounded willpower. Part III discusses and critiques the second argument made by public health advocates, that government should adopt anti-obesity measures to improve population-wide health. This Part considers the appropriate scope of public health law interventions with respect to behavioral risk factors (for example, diet), comments on empirical evidence offered by public health advocates to support proposed soda taxes, and cautions public health advocates to consider possible unintended consequences of anti-obesity proposals.

Obesity policy debates present a conflict of fundamental values, such as health, fairness, efficiency, and autonomy. Part IV attempts to reconcile these values and responds to the “personal responsibility” objection to soda taxes and food taxes. Part V considers various factors that would affect behavioral responses to proposed soda taxes and food taxes and addresses concerns that such taxes would be regressive and thus unfair to low-income consumers. This Part also explores the tax design implications of the literature on tax salience and on asymmetric paternalism and libertarian paternalism. Part VI suggests the way forward for public health advocates, including a proposal to enact a tax on nutritionally poor foods and drinks, paired with a salient benefit. In addition, this Part recommends enactment of a federal system of food classification, based on nutrient profiling methods, along with a federal system of front-of-package nutritional labeling.

Number of Pages in PDF File: 69

Keywords: food tax, fat tax, junk food, obesity, soda tax, sweetened beverage, BMI, diet, public health, externalities, internalities, behavioral economics, willpower, incomplete information, tobacco, market failure, critical realism, fast food, menu labeling, calories, nutrition

JEL Classification: H20, H23, H51, I12, I18

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Date posted: November 6, 2012 ; Last revised: June 8, 2013

Suggested Citation

Pratt, Katherine, A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes (November 5, 2012). Tulane Law Review, Vol. 87, No. 73, 2012 ; Loyola-LA Legal Studies Paper No. 2012-44. Available at SSRN: http://ssrn.com/abstract=2171493

Contact Information

Katherine Pratt (Contact Author)
Loyola Law School Los Angeles ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8163 (Phone)
213-380-3769 (Fax)

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