Annals of Health Law
HOW TO REGULATE TOXIC FOODS
market contain added sugar, 112 severely limiting consumer choice. 113 These
products are not only on supermarket shelves, but they are in vending
machines, schools, convenience stores and virtually everywhere one looks.
Sugar is even added to products not normally considered as sweet, like
bread and ketchup. The sugar lobby has a vested interest in keeping it that
way. With this ready availability, sugar consumption has drastically
increased over the past 50 years. 114 The average American consumes 152
pounds of sugar annually. 115
III. PUBLIC HEALTH LAW AND TOBACCO116
[S]ugar . . . resembles alcohol and tobacco in that it is a material for
which people rapidly develop a craving, and for which there is nevertheless
no physiological need. 117
Tobacco use is the single largest cause of premature death in the United
States, killing more than 400,000 people annually. 118 In addition to those
112. See Robert Lustig: Transcript, Here’s the Thing:With Alec Baldwin,
http://www.wnyc.org/shows/heresthething/2012/jul/02/transcript/ [hereinafter Here’s the
Thing] (In a discussion with Alec Baldwin, Dr. Lustig notes that Dr. Barry Popkin “has just
done a study that shows that 80 percent of the food items, there are 600,000 food items in
America, 80 percent of them are laced with sugar, added sugar.”). It bears repeating that any
regulation should address only foods with added sugar. Foods like fruit that naturally
contain sugar, also contain fiber, which appears to counteract the negative impact of sugar
consumption. Fruit also contributes to the body’s natural cleansing process. See YUDKIN,
supra note 8.
113. Lustig et al., supra note 8.
114. See supra note 28 and accompanying text. Cf. YUDKIN, supra note 8, at 8-14
(describing the evolution of the human diet over thousands of years, and focusing on our
shift from proteins and fats toward carbohydrate starches and sugars). Our diet is now
focused more on palatability than nutrition. Id. at 11.
115. See U.S. DEP’T OF AGRIC., OFFICE OF COMMUNICATIONS, AGRICULTURE FACTBOOK
(2001) available at http://www.usda.gov/factbook/chapter2.htm.
116. This section focuses on the legal regulation of cigarettes. Other tobacco products,
like cigars and chewing tobacco are subject to some, but not all of the same regulations.
117. YUDKIN, supra note 8, at 13 (noting that many countries have taxed sugar, along
with tobacco and alcohol.) Like tobacco, alcohol is also subject to various public health
laws, like the twenty-one year old age restriction for alcohol purchases and DUI laws. While
sugar and alcohol are metabolized in essentially the same way, sugar is not an acute toxin
that can impair such basic functions as the ability to drive. Moreover, tobacco regulations
are more extensive than alcohol regulations. For these reasons, this article compares sugar to
tobacco rather than alcohol.
118. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, PREVENTING TOBACCO
USE AMONG YOUTH AND YOUNG ADULTS: A REPORT OF THE SURGEON GENERAL, EXECUTIVE
SUMMARY (2012), available at http://www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/exec-summary.pdf. The tobacco industry, however, is expressly protected
by federal law. See 15 U.S. C. § 1331( 2), (noting that one of the purposes of the Cigarette
Labeling and Advertising Act is to protect commerce and the national economy by not