Soda Taxes as a Legal and Social Movement

25 Pages Posted: 8 Dec 2017

Date Written: December 1, 2017

Abstract

In the last few years, several local governments have adopted new soda taxes. Other localities currently are considering adopting such a tax. In this Article, we consider whether soda taxes are becoming a more common local policy throughout the country — like local smoking restrictions — or whether, instead, they will remain a limited legal phenomenon. We focus on two potential obstacles to the widespread adoption of local soda taxes: (1) policy-based objections to the taxes as regressive and unduly paternalistic, which could undermine political support for their adoption at the local level; and (2) state preemption of local taxes, often achieved at the behest of the beverage industry. As we explain later, the principal risk of preemption vis-à-vis soda taxes does not come from the state courts in the form of decisions finding implied or field preemption, but rather from state statutes that expressly, unequivocally preempt such taxes. In almost all states, such express preemption would be considered lawful by the courts and would be effective in depriving localities of the power to impose taxes on soda.

Keywords: soda tax, preemption, politics, state and local government

JEL Classification: K10, K30

Suggested Citation

Dana, David A. and Nadler, Janice, Soda Taxes as a Legal and Social Movement (December 1, 2017). Northwestern Journal of Law and Social Policy, Forthcoming; Northwestern Public Law Research Paper No. 17-27. Available at SSRN: https://ssrn.com/abstract=3084818 or http://dx.doi.org/10.2139/ssrn.3084818

David A. Dana (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0240 (Phone)
312-503-2035 (Fax)

Janice Nadler

Northwestern University - School of Law

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-3228 (Phone)
312-503-2035 (Fax)

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611

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