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Finding the sweet spot in public health law to regulate sugary drinks

Two Stanford public health law experts say one of the biggest culprits of the obesity epidemic - on top of fast foods and sedentary lifestyles - is sugary drinks. And they believe the sweet spot for public health law in curbing the adverse effects of sugar-sweetened beverages (SSBs) lies in the strategic use of measures such as higher SSB taxes, limits on advertisements targeting kids, and restrictions on soft drinks and sugar-sweetened teas and sports drinks in government institutions, such as public schools.

"Enough is already known about the promise of some legal interventions to curb SSB consumption - significant tax hikes and advertising restrictions are two good examples - to be fairly confident that they would make a difference," says David Studdert, MD, a professor in the medical and law schools and a core faculty member at the Center for Health Policy/Center for Primary Care and Outcomes Research.

Studdert is the lead author of a review paper, "Searching for Public Health Law's Sweet Spot: The Regulation of Sugar-Sweetened Beverages," which was published today in PLoS Medicine.

Studdert and senior author Michelle Mello, MD, also a professor in the medical and law schools, and co-author Jordan Flanders, a former Stanford Law School student, argue that sugary drinks are a substantial, yet preventable contributor to the global burden of obesity and associated health conditions.

A recent study in the journal Circulation linked the consumption of sugary drinks to an estimated 184,000 adult deaths each year, with more than 25,000 of those Americans. While Americans' consumption of sugary drinks has plateaued, according to the research, about three-fourths of the deaths due to SSBs are now in developing countries. Mexico leads with 24,000 total deaths. The United States still ranks fourth, however, just behind South Africa and Morocco.

The Stanford researchers say the evidence shows that sugary drinks are contributors to the global obesity epidemic, but the appropriate reach of regulation to curtail SSB consumptions remains highly contested.

"Finding public health law's sweet spot requires regulatory approaches that are capable both of achieving measurable improvements to public health and of winning victories in courts of law and public opinion," they wrote.

That's often difficult.

New York City's attempt to ban the sale of jumbo-sized sugary drinks sold in city restaurants, theaters and food carts triggered international headlines and a firestorm of opposition. The soft drink industry embarked on a multimillion-dollar campaign to block the proposal, succeeding last year when the New York State Court of Appeals ruled that the city's Board of Health had "exceeded the scope of its regulatory authority."

Taxes on SSBs, the most commonly adopted measure, vary widely, the authors wrote. A few countries, most notably several South Pacific island nations, where obesity rates are among the highest in the world, have introduced very high taxes on sugary drinks.

But most sugar-sweetened beverage taxes add between 5 and 9 cents per liter. This is well short of the level that experts argue is needed to significantly affect consumption and weight outcomes: a sales tax of at least 20 percent of the container's price or a specific excise tax of 1 cent per ounce.

"In the United States, there have been many government proposals to introduce or raise taxes - most unsuccessful," the authors wrote. "The beverage industry has invested heavily in public relations firms and 'grassroots' organizations to oppose the initiatives."

Berkeley, Calif., recently became the first U.S. city to pass an SSB tax, a penny-per-ounce excise on soda distributors, but a similar ballot measure in nearby San Francisco failed. At least 22 states have proposed SSB taxes since 2010, but only one state, Washington, passed a measure at the level recommended by economists - and it was repealed the following year in a voter referendum.

Advertising is another target for public health advocates, the researchers said: "There is broad consensus in the public health community that reducing the influence of advertising is a critical step in addressing the spread of childhood obesity."

The United States and Canada have sought to regulate advertisers through a soft approach -- mainly via voluntary guidelines and pressure to self-regulate, according to the authors.

"These appear to have had only a modest impact on marketing practices," they said. "U.S. regulators face considerable legal barriers in going further, including courts' increasingly expansive interpretations of the scope of protected commercial speech under the First Amendment. Unless judicial currents shift, it will remain extremely difficult to impose restrictions on SSB advertising."

Mello said lower income countries should anticipate that SSB companies will increasingly target them. "Our experience with tobacco control teaches us that lower- and middle-income countries need to become wary when product regulation in the U.S. tightens," she said. "Like squeezing a balloon, it pushes companies to intensify their marketing efforts overseas, and our public health problems get exported."

And, the authors note, while policy nudges have become fashionable, "there are dangers in treading too lightly."

"One somewhat surprising message that comes from reviewing how courts have handled challenges to SSB laws is that regulators can run greater risks of having their laws struck down if they are too timid," Studdert said.

"Courts weigh effectiveness, and modest attempts to change behavior are often ineffective. So one piece of advice regulators in this area should consider is to 'go big or go home'."

Beth Duff-Brown is communications manager for the Center for Health Policy and Center for Primary and Outcomes Research.

Previously: Sticky situation: How sugar affects our health, Sugar intake, diabetes and kids: Q&A with a pediatric obesity expert and Using a traffic light system to encourage healthier eating habits
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