“It may take more than an analogy with tobacco to convince voters,” argues Daniel Engber in the first of two recent Slate articles questioning the effectiveness of a proposed federal tax on sugar-sweetened beverages and other “hyperpalatable” food products. Titled “Let Them Drink Water: What a Fat Tax Really Means for America,” the article asserts that state-levied soda taxes have thus far “turned out to be way too small to make anyone lose weight.” It states that any successful effort to deter consumption would require redefining soda as drug, not a beverage.

“It’s hard to draw a line, though, between foods that are drugs and foods that are merely delicious,” opines Engber, who notes that under this regime, “Doughnuts are a drug; brioche is treat.” He concludes that fat taxes, which “[discriminate] among the varieties of gustatory experience,” would create an “apartheid of pleasure” that disproportionately affects those consumers most sensitive to food prices.

Meanwhile, William Saletan examines the greater policy implications of fat taxes in a related article titled “Then They Came for the Fresca: The Growing Ambitions of the Food Police.” Saletan charges “lifestyle regulators” with “stretching the evidence about obesity and addiction” to support a federal soda tax, which he describes as a slippery slope leading to other paternalistic policies. He points to a recent New
England Journal of Medicine (NEJM) article that suggests taxing some non-caloric beverages because, according to Arkansas Surgeon General Joseph Thompson and his co-authors, “there are concerns that diet beverages may increase caloric consumption by justifying consumption of other caloric foods or by promoting a preference for sweet tastes.” Although the NEJM piece reportedly concedes a lack of
consistent data in this area, it proposes further research to determine whether such a tax might be justified in the future.

“If studies show that [diet beverages] indirectly increase caloric consumption ‘by promoting a preference for sweet states,’ the food police are explicitly prepared to tax them,” warns Saletan. “And the crusade won’t end with soda. Anything sweet is a target.” See Slate.com, September 21 and 22, 2009.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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