Big Food and Soda versus Public Health: Industry Litigation against Local Government Regulations to Promote Healthy Diets

By Roache, Sarah A.; Platkin, Charles et al. | Fordham Urban Law Journal, May 2018 | Go to article overview

Big Food and Soda versus Public Health: Industry Litigation against Local Government Regulations to Promote Healthy Diets


Roache, Sarah A., Platkin, Charles, Gostin, Lawrence O., Kaplan, Cara, Fordham Urban Law Journal


Introduction                                                      1052   I.  Diet-Related Chronic Diseases                               1053       A. The Rise of Diet-Related Chronic Diseases                1054       B. Costs of Diet-Related Chronic Diseases                   1055  II.  Government Measures to Promote Healthy Diets and Prevent       Diet-Related Chronic Diseases                               1056       A. Federal Government Action                                1056       B. State Government Programs                                1057       C. Local Government Initiatives                             1059 III.  Industry Attempts to Thwart Public Health Regulations       1061       A. Lobbying                                                 1061       B. Funding Scientific Research                              1064       C. Public Messaging                                         1066       D. Funding "Grassroots" Opposition                          1066  IV.  Industry Litigation Challenging Local Government Measures       to Promote Healthier Diets                                  1067       A. New York City Soda Portion Cap Rule                      1067       B. Philadelphia Soda Tax                                    1070       C. Cook County Soda Tax                                     1073       D. San Francisco Soda Warning Ordinance                     1078   V.  Legal Viability and Political Sustainability of Local       Government Measures to Promote Healthier Diets              1083       A. Legal Viability                                          1084       B. Political Sustainability                                 1087 Conclusion: Toward a Healthier and More Productive Future         1088 

INTRODUCTION

Unhealthy diets are contributing to alarming levels of obesity, cardiovascular disease, type 2 diabetes, and certain cancers throughout the United States. (1) While high-fat, sugar- and sodium-laden diets are major contributors, one of the most important causative factors is the increased consumption of sugary beverages, which include beverages that contain added caloric sweeteners such as flavored milks, fruit drinks, sports drinks, and sodas. (2) Sugary beverages are the single largest source of added sugar in the American diet. (3) Higher intake of sugary beverages among children was associated with a fifty-five percent higher risk of being overweight or obese than those with lower intake. (4)

Although federal and state governments have taken some proactive measures to prevent diet-related diseases, local governments have emerged as key innovators to promote healthier diets. (5) Innovative local measures include menu labeling laws, a soda portion cap, soda taxes, and warning labels. (6) These interventions seek to discourage overconsumption of fats, sodium, and sugars, which raises tensions between health promotion and the food and beverage industry's commercial interests in promoting products and maximizing profits. (7) Although cities are making progress to encourage and promote healthier diets, (8) these local governments must prepare for the inevitable resistance from powerful food and beverage industry actors, including litigation, which can undermine innovative, evidence-based public health measures. (9)

Part I of this Article discusses the rise of diet-related chronic diseases and the serious social and economic impacts on individuals and societies. Part II examines federal, state, and local government interventions to prevent these diseases. Part III discusses food and beverage industry efforts to undermine public health regulations, including lobbying and public messaging. Analyzing four case studies from cities throughout the United States, Part IV identifies litigation as a key component of the food and beverage industry's strategy to undermine local government measures promoting healthier diets. Part V argues that local jurisdictions should prepare to defend their public health laws and policies against industry litigation and suggests steps to help ensure legal viability, political sustainability, and public support. …

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