Annals of Health Law
HOW TO REGULATE TOXIC FOODS
drinks has critics referring to a developing “nanny state.” 168 Most
regulations, therefore, should be at the level of production, focusing on
improving the food supply rather than restricting consumer freedoms at the
retail level. However, there are enough similarities between sugar and
tobacco to warrant applying some, but not all, of the same regulatory
approaches to sugar that are already applied to tobacco.
Tobacco generates direct health hazards for anyone in the vicinity of the
user because of the dangers of second-hand smoke. 169 The overconsumption of added sugar also harms more than just the person
consuming it. The societal health costs associated with obesity, diabetes,
and heart disease, among others, are huge. 170 Everyone pays higher health
insurance premiums to help pay for those who suffer from these illnesses. 171
Thus, the societal economic harms associated with sugar consumption,
while arguably more indirect than the threat of being near a smoker are
quite real. 172 Using tobacco as a model for addressing the health risks
associated with added sugar through regulatory channels, a combination of
federal, state, and local initiatives is likely to have the most significant
First, given the large number of diseases linked to sugar consumption,
obesity, heart disease, diabetes, and others, public health agencies are
obligated to educate the public. After all, providing information is a central
reason why public health agencies exist. Federal, state and local public
health agencies can use their spending power for public health
announcements and other initiatives to warn of the health hazards of sugar
consumption, just as they have been used extensively to educate and warn
of the dangers associated with smoking. 173 Knowledge that smoking is bad
168. See supra note 3.
169. See REPORT OF THE SURGEON GENERAL, supra note 120.
170. The United States Surgeon General estimated that the costs associated with obesity
were 117 billion dollars in 2000. See infra note 187.
171. As America’s Waistline Expands, Costs Soar, REUTERS (Apr. 30, 2012, 6:00 AM),
Affordable Care Act retains our substantial reliance on private, for-profit insurance
companies, whose main mission is to make a profit. Therefore, they will raise premiums as
needed to keep profits high. The public option, which failed to make it through the final
round of the Act, would have created a source of competition for the private health insurance
172. In addition to the economic hardships associated with the consumption of sugar,
there are also emotional challenges for those living with people who are obese, suffering
from heart disease or one of the many other ailments associated with sugar.
173. Cf. Am. Legacy Found. v. Lorillard Tobacco Co., 886 A.2d 1 (Del. Ch. 2005)
(discussing a series of smoking advertisements funded by the American Legacy Foundation
as an outgrowth of the 1998 Master Settlement Agreement.).