Advanced policy options to regulate sugar-sweetened beverages to support public health

Consumption of sugar-sweetened beverages (SSBs) has increased worldwide. As public health studies expose the detrimental impact of SSBs, consumer protection and public health advocates have called for increased government control. A major focus has been on restricting marketing of SSBs to children, but many innovative policy options – legally defensible ways to regulate SSBs and support public health – are largely unexplored. We describe the public health, economic, and retail marketing research related to SSBs (including energy drinks). We review policy options available to governments, including mandatory factual disclosures, earmarked taxation, and regulating sales, including placement within retail and food service establishments, and schools. Our review describes recent international initiatives and classifies options available in the United States by jurisdiction (federal, state, and local) based on legal viability.

For centuries, water has been challenged by other beverages as the drink of choice. Tea and coffee were first, followed by the invention of soda water in the 1760s – the basis for cola beverages in the late 1800s.¹ Now beverages sweetened with cane sugar, corn syrup, and the derivatives of the two (collectively ‘sugar’)² are heavily consumed globally.³

As public health studies began to expose the detrimental impact of sugar-sweetened beverages (SSBs), consumer protection and public health advocates called for increased government control, often focusing on marketing.⁴ In 2010, the World Health Organization (WHO) proclaimed the marketing of unhealthy products to children an international issue, calling on Member States to act.⁴ But limiting SSB marketing to children is less feasible in the United States, where ‘commercial speech’ (or advertising) is protected by the First Amendment of the Constitution.

In the United States, commercial speech is amenable to regulation and can be restricted in certain circumstances, most notably in the school environment. A legal basis exists to argue that commercial speech directed at children is misleading and deceptive and thus, not protected by the First Amendment.⁵ Government restrictions, however, would likely provoke constitutional challenges from industry, resulting in complex litigation and unclear outcomes.

Government may consider alternative policy options to avoid such First Amendment challenges. The US Supreme Court has sanctioned the government's ability to protect and inform consumers by mandating the disclosure of factual information or regulating what US law refers to as conduct, which in this context refers to sales practices.⁶ We apply the Court's reasoning from other public health contexts (for example, tobacco) to SSBs. Our suggestions address information disparities and access issues in the retail environment. The options we consider may be attractive to other countries seeking to regulate SSBs without or in addition to marketing restrictions.

We describe the public health, economic, and retail marketing research about SSBs (including ‘energy drinks’, when applicable). Several policy options are available to address beverages of public health concern: requiring factual disclosures, earmarked taxation, and regulating the sale and location of such beverages within retail and food service establishments, and schools. We discuss legal viability.

Source: Journal of Public Health http://www.palgrave-journals.com/jphp/journal/v32/n1/full/jphp201041a.html

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