By Steven J. Gonzalez
The prevalence of obesity and its related chronic illnesses has been increasing for decades and takes a heavy toll not only on individual households, but also on public health institutions. The over-consumption of sugar, especially through Sugar Sweetened Beverages (SSBs), is an important contributor to this epidemic. Curtailing Americans’ intake of sugar cannot be done effectively by only encouraging “personal responsibility,” because the food environment encompasses a powerful set of factors that create “defaults” for over-consumption. On the other hand, heavy handed policies that would ban or set legal limits on particular products are politically unpalatable. A better solution would use targeted applications of behavioral economics to correct the market-failures, nudging consumers into healthier choices, while preserving Americans’ freedom to consume sugar. This article details a variety of policies for lawmakers to examine that, to varying degrees, embody the behavioral approach to public health problems.
II. Increased Prevalence of Obesity and Related Chronic Diseases
Obesity prevalence has increased dramatically in recent years. In 1990, the prevalence did not exceed 15 percent in any state. By 2010, the prevalence of obesity did not fall below 20 percent in any state, and exceeded 30 percent in twelve states. A wealth of studies demonstrate that “[o]besity harms virtually every aspect of health, from shortening life and contributing to chronic conditions such as diabetes and cardiovascular disease to interfering with sexual function, breathing, mood, and social interactions.”
One of the most devastating chronic conditions related to obesity is type 2 diabetes. Although researchers continue to study the precise nature of the relationship between the two, obesity is undoubtedly a risk factor for developing the condition and weight management is a key treatment and prevention tool for those with or at risk of developing diabetes. Between 1980 and 2014, the number of diagnosed cases of diabetes in the United States has increased fourfold (from 5.5 million to 22 million), and diabetes is now the seventh-leading cause of death in the United States. Ninety-five percent of those afflicted by the condition have type 2 diabetes, which is preventable in most cases. Just as alarming, the CDC estimates an additional 86 million American adults have prediabetes, which, without intervention, will develop into type 2 diabetes in fifteen to thirty percent of cases. While type 2 diabetes was formerly uncommon in children—even earning the moniker “adult-onset diabetes”—in has since been developing in children at alarming rates and as young as 10 years old. If these trends continue, researchers estimate that up to one-third of the U.S. population will have diabetes by 2050 (up from fourteen percent in 2010).
III. Sugar’s Impact on Weight and Health
A recent University of California literature review found that a substantial majority of the highest quality studies demonstrate a statistically significant link between sugar consumption and obesity. During hearings about New York City’s then-proposed “Portion-Cap-Rule,” an esteemed and extensive list of medical and nutritional professionals, academics, and organizations supported the regulation, noting that “soda . . . is the single most important contributor to weight gain.” With every additional sugary beverage a child drinks daily, his or her odds of becoming obese increase by 60 percent. In addition to contributing to weight gain and obesity, higher rates of SSBs consumption is associated with higher risks of chronic illnesses like metabolic syndrome and type 2 diabetes. One meta-analysis estimates that 8.7% (1.8 million) of new type 2 diabetes diagnoses over the next 10 years will be solely attributable to SSB consumption.
To reverse these trends, the World Health Organization, the Institute of Medicine, and the FDA have all recommended that people consume no more than 10% of their daily calories from added sugars. At present, however, Americans consume an average of 16% of their total daily calories from added sugars—an increase of 30% since 1977. Reducing Americans’ consumption of SSBs and added sugars more generally is therefore critical to help combat the obesity and type 2 diabetes epidemics.
IV. Psychological Barriers to Individual Responsibility
If reducing sugar is the goal, an oversimplified policy solution might be to ban SSBs or put strict legal limits on added sugars in processed foods. But this approach would be politically untenable not only for the industry, but also to those consumers who wish to consume sweet foods or beverages in moderation. Conversely, the government could simply inform the public that sugar is bad for their health, and leave it up to individuals to act on that information. Americans are no stranger to this narrative and the logic that appears to underpin it—if we are the makers of our own fates, any negative outcome like obesity can only result from some personal failing like gluttony, laziness, or lack of discipline. But this view ignores the reality that eating behaviors are not just the result of independent choices by rational actors; they are also influenced by powerful environmental factors.
With regard to SSBs specifically, successful marketing, low product cost, increased portion sizes, and high availability contribute to high levels of consumption. For decades, inflation has outpaced the price of SSBs, making them increasingly inexpensive for the average consumer. Meanwhile, beverage companies spend $492 million annually on youth-directed marketing. Additionally, sugar may also induce some of the same addictive effects on brain chemistry as drugs like cocaine. Food producers exacerbate these chemical vulnerabilities with purposeful formulation of their recipes. As one food engineer integral to Dr. Pepper’s operations recounts, companies find a consumer’s “bliss point” where the product will “pique the taste buds enough to be alluring but [doesn’t] have a distinct, overriding single flavor that tells the brain to stop eating.”
V. Enter: Nudges
If neither the laissez-faire approach of pure personal responsibility, nor the strong-handed approach of sugar limits is effective, what policy solutions might form an effective middle-ground? Here, the sugar crusade can borrow from “libertarian paternalism.” This umbrella of theories recognizes that truly “free choice” is illusory, because there is always some existing choice architecture influencing people’s decisions. Given that reality, policy interventions that simply change the default options in that architecture can “nudge” people into more favorable outcomes, while preserving at least as much “free choice” as the original orientation. Each of the policy tools that follow are, therefore, aimed at correcting some default aspect of the choice architecture for U.S. consumers to yield lower sugar consumption.
a. Taxes on SSBs
Most academic discussion on nudges tend to omit taxes because directly changing financial incentives is usually the line theorists draw between libertarian and full blown paternalism; but, they are worth mentioning here both for their emergent popularity in government attempts to curb SSB consumption and because they might still have powerful secondary effects on consumer behavior. In this context, a government would place an excise tax on SSBs that is charged to manufacturers or producers, an expense that is often passed on to consumers.
A tax of this nature has three main benefits. First, it increases the currently low cost of SSBs—relative to non-sugary beverages like unsweetened teas or water—to the point that it influences consumer behavior. Second, the tax leads consumers who still do purchase an SSB to internalize (through payment of the tax) the externalities (public health costs) of their consumption. Third, earmarked revenue from the tax can be put toward other efforts to reduce sugar consumption or improve health, like education campaigns or improved school meals. Some argue these taxes are regressive—that they disproportionately impact low-income Americans—but this account fails to recognize that obesity is regressive. If the tax succeeds in improving consumption habits, its cost would be offset by personal gains from reduced healthcare costs and increased productivity (fewer days of work missed)—not to mention the intangible benefits of increased quality of life and reduced pain and suffering. For example, in 2012, healthcare expenditures for a person with diabetes were on average 2.3 times higher than expenditures for individuals without diabetes, and researchers estimated that reduced productivity from diabetes cost the U.S. $78 billion in 2014. With the increased prevalence of high-deductible healthcare plans and with many low-income workers stuck working part-time jobs without paid time off, reducing these burdens of sugar consumption could directly benefit individuals. Additionally, the revenue earmarked for benefits can be specifically funneled into low-income communities.
We have extensive examples of excise taxes on goods at all levels of government, and some precedent for SSB taxes specifically. Some products for which the federal government imposes excise taxes include alcohol, tobacco, fuel, and vaccines. All 50 states also impose their own excise tax on tobacco. Even some cities have the authority to impose taxes of this kind. Berkeley, for example, successfully passed an initiative to tax sugary beverages at 1 cent-per-ounce.
These taxes have proven effective not only in experimental studies, but also in practice. In just the first 10 months of its tax, Berkeley saw a 21 percent reduction in SSB consumption and raised $1.2 million for its general fund, leading the city council to earmark $1.5 million for the year toward community nutrition and health efforts. Mexico and France have seen similar reductions in consumption after imposing SSB taxes of their own. Recent high profile SSB taxes were adopted in 2016 in Boulder, San Francisco, Oakland, Albany, Cook County, Philadelphia, and the United Kingdom. Public health experts can continue to examine consumption data from this diverse array of cities, counties, and countries to guide future policy efforts.
b. Size restrictions
The “Portion-Cap-Rule” in New York City, which would have banned most distributors in the city from selling sugary beverages in excess of 16 oz., would have mitigated the concerns about default options and portion sizes. The regulation would have forced those considering more than 16 oz. to make a more conscious choice by making them purchase a second drink or get a refill. New York’s Department of Health and Mental Hygiene produced a report citing numerous studies showing that consumers largely gravitate toward a default option. Other cited studies further demonstrate that once someone has received a larger portion size, they not only consume more than if they had received a smaller portion, but also underestimate the calorie content of that portion. In the existing choice architecture, most distributors either give options of 16, 24, or 32 oz. drinks, but price them so that the 32 oz. option is the best “value”, and typically default the consumer into a 24 oz. drink. The evidence cited by the DOHMH shows that the existing choice architecture has a strong impact over which size is “chosen,” how many calories of it are consumed, and how much the consumer will underestimate this calorie total. Although New York’s law was ultimately struck down in court, it was not for any substantive reason; it was invalidated only because the city inappropriately passed the law through their Department of Health, not the City Council.
A warning could be either graphic or textual. A graphic warning could provide some image that triggers the consumers’ attention that this product contains a high amount of sugar. A textual warning could also include language, like tobacco, that lists the risks of consuming a high-sugar product.
On August 20, 2014, the New York State Assembly introduced the Sugar-Sweetened Beverages Safety Warning Act, which would require a textual “safety warning labeling” on all SSBs, reading, “Drinking beverages with added sugar contributes to obesity, diabetes, and tooth decay.” A nearly identical bill in the California Senate recently failed to make it out of committee.
One model for a graphic warning is the New York City Board of Health’s recent Sodium (Salt) Warning rule, which requires chain restaurants to post a graphic image of a salt-shaker inside a “warning-triangle” next to food items on menus and menu boards if they contain more than the daily recommended limit of sodium, 2,300 mg.
Graphic and text warnings trigger people’s scarce attention and counteract the natural human tendency toward unrealistic optimism. Countering the optimism that consumers feel toward health outcomes of SSB consumption is especially important when industry actors tend to mitigate concerns over the beverages by stressing “moderation in . . . consumption habits balancing calorie intake from all food and beverage sources, and the importance of exercise.” Preliminary research suggests textual warnings can cause fewer parents to choose SSBs for their children and increase reported belief that SSBs were less healthy for their children.
d. Front of Package Information
In 2010 and 2011 the Institute of Medicine (IOM), at the direction of the FDA, produced two separate reports examining which types of Front of Package (FOP) labeling models would best enable consumers to make healthier choices. The IOM found that the best scheme would feature “negative” nutrient information: calories, saturated and trans fat, sodium, and sugars. Further, the report noted the information should be presented in a manner that was: simple – easy to understand; interpretive – put judgments in context; and scaled – indicate good, better, and best. This theory could be operationalized by noting under individual nutrients whether they are “low” or “high” in a given serving. This is similar to “traffic light” schemes that have been shown effective in studies where products display the nutrient in either green or red. The United Kingdom implemented a similar scheme in 2013.
However, seeing that the IOM and the FDA were showing interest in overhauling FOP labeling, the Grocery Manufacturers Association released its own “Facts up front” scheme that included not only the IOM-recommended “negative” nutrients, but also “positive” information like vitamins, minerals, and fiber content. Their model also omitted any visual judgments about “low” or “high” amounts of nutrients in a product.
By ignoring the IOM recommendations, this model is more complicated and serves more as a marketing tool than a public health policy. The U.S. Government has thus far avoided moving forward with the Front of Package scheme in the IOM report, but if they choose to preempt “Facts up front” by making their own scheme mandatory, they could see a drop in consumption of sugar, among other nutrients.
Each of the above policy tools seeks to change existing defaults in our food system that currently—whether intentionally or by accident—drive overconsumption of sugar. By changing these defaults, the government would empower people to make these decisions for themselves, but in an environment that would more likely yield a favorable result. Although many of the experimental and observational results of these policies are still preliminary, they point to substantial reductions in American sugar consumption. Given the gravity of the obesity epidemic, policymakers may find it helpful to assess whether any of these options makes sense for their particular constituency by using existing models for comparison.
 J.D. Candidate, Harvard Law School, 2017; B.A., U.C. Santa Barbara. I owe thanks to the Harvard Law & Policy Review Online team for their excellent edits and comments on the article, as well as to Emilie Aguirre for her helpful feedback on the substance of the article.
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 Also known colloquially as the “Soda Ban.”
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 Serge Ahmed et al., Sugar Addiction: pushing the drug-sugar analogy to the limit, Current Opinion in Clinical Nutrition and Metabolic Care, available at http://www.ncbi.nlm.nih.gov/pubmed/23719144 (July 2013); see also Masroor Shariff, Neuronal Nicotinic Acetylcholine Receptor Modulators Reduce Sugar Intake, PLOS One, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0150270 (Mar. 2016).
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 Cass Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 2 (2014)
 Matteo Gallizi and George Loewenstein, The Soda Tax as a Measure for Sustained Change in Consumption, Voxeu.org (June 14, 2016), http://voxeu.org/article/beyond-nudging-case-uk-soda-tax.
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 Id. (Noting that sales of SSBs decreased an additional 18% when a tax was coupled with an educational campaign about the positive health impacts of reducing consumption).
 See, e.g., Bernie Sanders, A Soda Tax Would Hurt Philly’s Low-Income Families, PhillyMag (Apr. 24, 2016), http://www.phillymag.com/citified/2016/04/24/bernie-sanders-soda-tax-op-ed/.
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 Mike Esterl, Berkeley Voters Approve Tax on Sugary Drinks, The Wall St. J. (Nov. 2014), http://www.wsj.com/articles/berkeley-voters-approve-tax-on-sugary-drinks-san-francisco-ban-falls-short-1415189224.
 Allison Aubrey, Could a 6-Cent Tax Sour Us On Soda and Sugary Drinks?, NPR (June 3, 2014), http://www.npr.org/sections/thesalt/2014/06/03/318223640/could-a-six-cents-tax-sour-us-on-soda-and-sugary-drinks (suggesting that a tax as low as $0.04 per-ounce could lead to a reduction in SSB consumption).
 Emilie Raguso, Council Approves $1.5M to Fight Soda Consumption, Berkeley Side (Jan. 2016), http://www.berkeleyside.com/2016/01/20/berkeley-council-approves-1-5m-to-fight-soda-consumption/.
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 Article 81 of the New York City Health Code, available at http://www.nyc.gov/html/doh/downloads/pdf/about/healthcode/health-code-article81.pdf.
 Dept. of Health and Mental Hygiene Board of Health, Summary and Response to Public Hearing and Comments Received Regarding Amendment of Article 81 of the New York City Health Code 7–8 (2012), http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-comments.pdf.
 Id. at 6.
 Id. at 5.
 Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681 (N.Y. 2014).
 New York State Assembly, Bill A2320B, Sugar-Sweetened Beverages Safety Warning Act, available at https://www.nysenate.gov/legislation/bills/2015/a2320/amendment/b (in committee).
 California State Senate, SB-203, Sugar-Sweetened Beverages: Safety Warnings, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB203.
 Dept. of Health and Mental Hygiene Board of Health, Notice of Adoption of an Amendment (81.53) to Article 81 of the New York City Health Code (2012).
 Sunstein, supra note 29, at 5.
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