BAYLEN J. LINNEKIN is the founder and executive director of Keep Food Legal. Baylen has worked as a food and beverage attorney and holds a master of laws degree (LL.M.) in agricultural and food law. He’s also a food writer and founded Crispy on the Outside, an irreverent group blog focusing on food, food politics, and food regulations.
The following talk was given by Baylen Linnekin as part of the SoFAB Talks series in Washington, D.C. at the Dirksen Senate Office Building on January 25, 2011. To learn more about SoFAB events, click here.
Good afternoon. I’m very happy to be here. I’d like to thank Liz Williams from the Southern Food & Beverage Museum for inviting me to speak here today, Andrew Wallace from SoFAB for moderating, Jim McGreevy of the American Beverage Association for appearing alongside me on the panel, and Coca-Cola for sponsoring this first SoFAB Talks event.
My topic here today is the regulation of sugary food and drink. Admittedly, after SoFAB president and founder Liz Williams asked me to speak on the subject, I had a hard time thinking up ways to limit the scope of this talk. I had read some Mark Bittman comments on the subject recently that began to stir my drink, so to speak, but that’s about all I had. I mean, when you talk about soda and candy culture and regulation—where do you begin? With subsidies? High fructose corn syrup? Taxes? Obesity? Should I focus my remarks at the federal level? The state? Local? With schools? Vending machines? So-called “food deserts”? I could probably spend ten or fifteen minutes simply describing these and other issues.
Thankfully I was in Boston last Friday, and I owe much of my talk today to that trip. I was there to sit on a food-safety panel at a great symposium put on by the Northeastern University Law Journal. My talk focused on how food-safety regulations often have the perverse and unintended consequence of making eaters less safe.
After my panel ended, Christian Lander—the author of the book Stuff White People Like—gave a great lunchtime talk that focused on just how annoying privileged middle-class food scolds are. I then headed over to an obesity-law panel on which sat not one, not two, but three steadfast opponents of what I and many others like to refer to as “food.” People immune to Lander’s remarks.
The first panelist, who hails from academia, focused on fast food and soda and suggested it may be time not to regulate the former and tax the latter but just to ban them both. The second panelist, a doughy attorney, suggested that using the V-chip—a now-mandatory technology that has lain dormant in the televisions of roughly 10 out of 10 Americans since its invention—to block TV ads for subjectively unhealthy foods from kids’ programming. The third panelist, a lawyer and public-health activist, railed against makers and sellers of soda—diet or regular—especially as a breakfast beverage or in cases where a restaurant might try to sell the soda to customers instead of limiting their offerings to free tap water. You’ll forgive me if, after nearly an hour of this, she or any of the other panelists made a cogent point and that I missed it.
If anyone on the panel did make a point worth noting, it is that places like McDonald’s sell a lot of Coca-Cola, and places like Taco Bell sell a lot of Pepsi. Fast-food joints and soda companies are one and the same, in other words. To put the point in context, we all know food scolds go berserk over fast-food restaurants, and tend to believe that doing totally weird things to them will put a dent in obesity rates. What weird things? Things like exorcising crappy toys from Happy Meals—toys that kids lose or break in five minutes—will make the kids skinny.
Which brings me back to Mark Bittman. I love Bittman. Maybe you do, too? Or not. Or you’re thinking to yourself, “Who the hell is Mark Bittman?” He’s the smart NYT food writer and cookbook author. I read his Times post on whole-wheat pancakes last Wednesday morning and within minutes was in the kitchen whipping up a set of fluffy flapjacks. That Mark Bittman turns out great, reasonably low-calorie creations in a galley kitchen even smaller than my own and inspires me to cook more and better.
Now, I also hate Mark Bittman. He’s a hanger-on who famously ruined a good part of the otherwise beautiful Mario Batali/Gwyneth Paltrow/Claudia Bassols On the Road Again tour of Spain with his incessant whining and frequently grating, incomprehensible, and unnecessary devolution into Spanglish. That Mark Bittman thinks a soda tax that will help middle-class Americans lose an average of one pound each year—that’s one pound—is justifiable.
The data Bittman referred to comes from the recent work of economist Eric Finkelstein. While Bittman acknowledges the many shortcomings of a soda tax, shame on him for then writing that the idea “sounds pretty good” if it will get “us [even] part of the way” to stemming the tide of obesity.
How far along the path to “stemming the tide” does a soda tax get us? I’ll let you be the judge. If middle-class weight-loss is negligible from a soda tax, how about for people in lower-income brackets who—after all—have higher rates of obesity to begin with? Finkelstein writes that obesity levels in lower-income families aren’t affected by a tax. Why not? He says low-income individuals simply switch to other untaxed sweetened alternatives—like juice—or switch to generic brands. What’s more—and this is a classic example of unintended consequences—some people simply switch to buying soda in bulk.
There are other unintended consequences that accompany these taxes. For example, partly in response to Baltimore’s controversial 2-cent tax on bottled drinks, which the city passed in 2010, Pepsi just announced plans to close a plant in the city. A company spokeswoman said that continuing to make a beverage in a city with a beverage tax seems anachronistic. So credit a soda tax for 77 jobs lost in Baltimore, a city that can ill afford to lose just one.
Another good example of unintended consequences is linked to taxing sweets. When it comes to candy taxes, many states have developed something called the “flour test.” Simply put, candy isn’t candy if it contains flour. So sugary Twizzlers are candy, but floury Twix isn’t. However, the lower-calorie Three Musketeers bar is candy. So a tax could influence a person to eat a higher-calorie food instead of a lower-calorie one.
In addition to unintended consequences, the science behind these taxes is shaky at best. Consider just how much sugar is in a can of soda: about 40 grams. Think that’s a lot? Maybe it is. But then you also must also think that all-natural orange juice (33 grams), apple juice (39 grams), and grape juice (58 grams) are full of sugar, too. These drinks also contain, on average, up to 40% more calories than a can of soda. Not surprisingly, reports I’ve read note that numerous scientific studies in refereed journals—including three published in the American Journal of Clinical Nutrition and one in the American Journal of Public Health—fail to demonstrate a causal connection between soda consumption and obesity.
Finally, there’s the elephant in the room here—and let me be clear that by elephant I mean Republicans and Democrats and by here I mean Congress—in the form of subsidies. Does it makes sense for the government to subsidize corn and, consequently, help make high fructose corn syrup cheaper? Of course not. But it makes even less sense for the government to both subsidize it and tax it. If you believe more expensive soda means lower obesity rates, then ending corn subsidies is a better way to both lower taxes and make soda more expensive.
So after criticizing taxes and lawyers and Congress and the science behind taxes on sugary food and drink, I want to end on a hopeful note, though. Because there is hope. Candy and soda makers and their lobbyists have thankfully been successful in fighting back against taxes. Voters repealed candy and soda taxes in Maine and Washington State last year. And perhaps most promising, the incoming New York State health commissioner has reversed course in the state—and bucked Mark Bittman—and come out against a soda tax, saying the last thing New Yorkers need is more taxes—especially ones that aren’t proven to work.
Will taxes on sugary food and drink work? It depends. They probably help raise revenue for some states. But will they reduce obesity rates? I doubt it. I doubt revenue would be used to battle obesity—or that it would be effective if it were. Having lived through a lifetime of state lotteries that effectively served—like soda taxes—as a tax on the poor, and were supposed to be a godsend for public education, I’m rightly skeptical. Lotteries were supposed to fund education but didn’t. And even if you mistakenly believe they were used to fund education, educational achievement never went up.
If taxes on sugary food and drink won’t work, is there some other way to reduce obesity rates? You bet. Run. Swim. Walk. Burn calories. Oregon has the lowest rate of childhood obesity in the country. Yet Oregon also has one of the highest incidences of fast-food restaurants per capita in the nation. Low rates of childhood obesity in a state with so many fast food restaurants? What gives? Well, the same data show that more than 70% of Oregonians get sufficient exercise. When I presented this same data to the obesity-litigation panelists in Boston this past Friday, in the form of a question, and asked why not one of them had used the word “exercise” during their combined hour of remarks, they had no answer. Because sometimes otherwise smart people—be it these panelists or Mark Bittman—don’t make a sweet lick of sense.