PHAI Online - The Public Health Advocacy Institute
Archive for the ‘Food/Beverage Marketing’ Category
PHAI Attorney and Noted Univ of IL Economist Look at Applying Tobacco Taxation and Other Pricing Strategies to Reduce Obesity
Wednesday, March 31st, 2010
University of Illinois, Chicago Economist, Frank J. Chaloupka, and PHAI Senior Staff Attorney, Patricia A. Davidson, have published an article commissioned by the Tobacco Control Legal Consortium that explores the applicability of tobacco control taxation and pricing strategies to obesity prevention. Key points include:
- Tobacco consumption responds to price changes. Higher taxes reduce consumption and prevalence, especially among youth and the poor. Higher taxes also raise government revenue that may be dedicated to tobacco control or other public health initiatives.
- Most tax increases are justified on policy and economic grounds.
- The legality of tax increases is not generally a significant issue, unlike restrictions on advertising and marketing, which often spark First Amendment commercial speech debates.
- The tobacco industry, concerned with long-term profitability, has responded to tax increases with a variety of discounting practices. Tobacco control advocates could respond more aggressively to this strategy by adopting laws to restrict discount tools, such as coupons, multi-pack discounts, and other price discounts, including removing their protection under minimum pricing laws. Although the industry may argue that limits on discounts raise First Amendment issues, this argument should not be persuasive because laws pertaining to pricing and discount practices do not implicate the commercial speech doctrine. Such laws only need to be rationally related to a legitimate public health purpose (e.g., reducing consumption) to withstand a court challenge.
- Proposed taxes on sugar-sweetened beverages raise many of the same policy and legal issues as tobacco taxes. The food industry’s arguments against them are also similar to those of the tobacco industry. Tax increases, as well as any laws limiting industry discounting practices, do not implicate the First Amendment and are legally defensible as reasonable measures to reduce consumption.
- Higher taxes on sugar-sweetened beverages, at least as a first step, may currently be more politically palatable and justifiable than a potentially difficult to define and administer tax on snack foods.
- The successful strategy of dedicating a portion of tax increases to public health programs, including subsidies for healthier options, should be part of the legal policy model for taxing sugar-sweetened beverages or snack foods.
PHAI publishes Case Study on NYC Menu Labeling Litigation
Monday, March 29th, 2010
PHAI documented the successful passage of the nation’s first restaurant calorie disclosure law. In an effort to address increases in obesity rates and obesity-related health problems, the New York City Department of Health and Mental Hygiene (“DOHMH”) amended the City’s Health Code on December 5, 2006 and then again on January 22, 2008 to require that chain restaurants post the number of calories contained in standardized menu items. The disclosure appears close to each item on the menu or menu board. Restaurant patrons are more likely to see and act upon these disclosures, compared to information posted in less obvious locations in restaurants or on websites.
Although several public health practitioners and organizations supported the concept of the disclosure law, its legality was untested in the courts when DOHMH acted. DOHMH knew it would face an organized and well-funded opposition. DOHMH nevertheless passed the disclosure law and faced two lawsuits. The final outcome was that DOHMH established a version of the disclosure law that was more comprehensive than originally intended. (The first version applied only to restaurants that voluntarily agreed to post calorie information. The final version applies to most chain restaurants, regardless of whether they want to post calorie information.) Numerous states and municipalities have subsequently passed disclosure law in their jurisdictions.
The decision by DOHMH to proceed was under-girded by some key factors. First, the scope of the increase in obesity prevalence was (and remains) alarming. The problem had been documented in health surveillance data. Second, several public health organizations have recommended the concept of mandating clear disclosure of calorie information for restaurant meals at the point of purchase. Third, organizational changes at DOHMH allowed public health practitioners to identify and focus on environmental risk factors for obesity. Fourth, questions of legality were addressed early on through a comprehensive internal legal review and dialogue that included a well-informed consideration of the potential public health benefits.
Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, PHAI used case study research methodology to investigate threats of litigation made during the proposal and passage of public health laws. The case studies examine this experience across a range of public health issues. Public health officials, attorneys and advocates provide insight into their decision-making and planning process in anticipation of and in response to legal challenges.
PHAI Researches Unfair Food Marketing to Kids (and those who purchase for kids)
Tuesday, December 8th, 2009
-- Staff Attorney, Cara Wilking, Presents Poster
On December 2, 2009, Mark Gottlieb and Cara Wilking presented a poster to the Robert Wood Johnson Foundation’s Healthy Eating Research program grantees in Tucson, Arizona.
PHAI is exploring how state consumer protection laws can be used to address unfair and deceptive food and beverage marketing practices directed toward children or those who purchase food and beverages for children. Such state laws may permit private citizens, attorneys general or prosecutors to bring actions consumer fraud.
Recently, Connecticut state attorney general Richard Blumenthal launched an investigation into the Smart Choices labeling program. The eight large food companies that participated in the labeling program (ConAgra Foods, General Mills, Inc., Kellogg Company, Kraft Foods, PepsiCo, Inc., Riviana Foods, Sun-Maid and Unilever) have agreed to remove the program’s logo from their products, at least during the investigation.
PHAI’s findings will be available by the Fall of 2010.
