Annals of Health Law
HOW TO REGULATE TOXIC FOODS
protecting our food supply.206 Currently, the FDA classifies sugar as a
substance that is “generally recognized as safe” (GRAS).207 Without the
GRAS classification, added sugar would be considered a “food additive”
subject to FDA regulation.208 With the GRAS classification, it is not.209
The discussion in Part I points out that sugar is not safe unless consumed in
small quantities. Otherwise, it can cause a great deal of harm. The FDA
should re-classify sugar as a food additive and regulate it accordingly, just
as it has taken a broad approach to regulating tobacco.
Taxing and spending are tools that have traditionally been used to
modify behavior in the public health context. Cigarettes, as noted above,
are heavily taxed to make them more expensive, in an effort to discourage
use.210 Likewise, in an attempt to discourage the use of soda, former New
York Governor, David Patterson, proposed a tax on sodas.211 Sodas have
more added sugar than any other product, so they have been targeted
because they contribute heavily to obesity and other diseases associated
with excessive sugar consumption.212 And research suggests that when it
comes to optional food items like sodas, consumers are sensitive to
prices.213 They will consume less when prices are high and more when the
prices are low.214 Therefore, at the very least, taxes should be imposed on
sodas and other soft drinks with equally high sugar content. In addition,
taxes should be imposed on products with ten or more grams of added sugar
206. Food, FOOD & DRUG ADMIN., http://www.fda.gov/Food/default.htm (last visited
Jan. 7, 2012).
207. Substances Generally Recognized as Safe, 21 C.F.R.§ 184.1857 (1997).
208. Food, Drug and Cosmetic Act, 21 U.S. C. §§ 301 et seq. See also Generally
Recognized as Safe (GRAS), FOOD & DRUG ADMIN., http://www.fda.gov/Food/
FoodIngredientsPackaging/GenerallyRecognizedasSafeGRAS/ default.htm (last visited Nov.
13, 2012) “[ A]ny substance that is intentionally added to food is a food additive, that is
subject to premarket review and approval by FDA, unless the substance is generally
recognized, among qualified experts, as having been adequately shown to be
safe . . . .Under . . . FDA . . . regulations in 21 CFR 170. 3 and 21 CFR 170. 30, the use of a
food substance may be GRAS either through scientific procedures or, for a substance used in
food before 1958, through experience based on common use in food.”).
209. Generally Recognized as Safe, supra note 208.
210. See supra note 150 and accompanying text.
211. See Confessore, supra note 167.
212. NOTICE OF PUBLIC HEARING, supra note 2. (“Sugary drinks are the largest source of
added sugar in the average American’s diet, comprising nearly 43% of added sugar intake.”
(citing J.F. Guthrie & J.F. Morton, Food Sources of Added Sweeteners in the Diets of
Americans, 100 J. OF THE AM. DIETETIC ASS’N 43 (2000))).
213. FORUM HARVARD SCH. PUB. HEALTH, supra note 165; Foster, supra note 101, at
262 (“Clinical studies show that altering the price of foods significantly impacts consumer
food choices.”) (citing HEATHER SCHOONOVER & MARK MULLER, INS. FOR AGRIC. & TRADE
POLICY, FOOD WITHOUT THOUGHT: HOW THE U.S. FARM POLICY CONTRIBUTES TO OBESITY 8