Danielle Erickson, Government Law Review Member
We live in an age where 60.5% of American adults are currently overweight, 23.9% are obese, and 3% are extremely obese. Beyond that, one in every six school-age children is not just overweight, but obese! The Centers for Disease Control and Prevention contend that the prevalence for obesity in school-age children has tripled since the 1970s. This is especially troubling when taking into account that early obesity leads to earlier onsets of obesity associated health problems such as: diabetes, high blood pressure, heart disease, asthma, pregnancy complications, arthritis, certain cancers, and depression. It has been estimated that between 300,000 and 400,000 deaths a year can be attributed to poor eating habits and obesity. This number is just shy of smoking related deaths and far surpasses the number of deaths caused by alcohol, car accidents, guns, or sexual disease. All in all obesity costs Americans an average of 117 billion dollars in obesity related medical problems as well as lost wages from illness and premature death.
In December 2008, New York Governor David Paterson proposed an 18% tax on soda and other sugary drinks containing less than seventy percent juice as part of what is now loving referred to as an “obesity tax”.  Patterson declared childhood obesity a public health epidemic and compared it to smoking; citing statistics as staggering as one in four New Yorker’s under the age of eighteen is obese with the rate being closer to one in three in high poverty areas.  The soda tax was aimed at reducing the consumption of soft drinks, which have been found to be one of the key factors in childhood obesity. Governor Paterson cites Harvard research which indicates that, “for each additional 12-ounce soft drink consumed per day increases the risk of a child becoming obese by 60 percent”, with the correlation for adults being equivalent. The Governor estimated that the tax would raise 404 million dollars, which would be used to fund public health programs but perhaps more importantly would reduce soda consumption by 5%.
However, by February 2009 Governor Paterson realized that his proposal for an 18% tax on soda would not pass in the legislature. As a result Paterson proposed a revised soda tax in January 2010, in which he seeks to gain approval for a penny per ounce tax on sugary drinks. The added tax would be less apparent to consumers as it would be figured into the retail price of the soda instead of added on at checkout, still it is estimated that it could reduce soda consumption by 10 to 15%, but would raise an estimated one billion dollars in revenue solely allocated to the heath care and education budget.
Once more this soda tax like the previous is being met with opposition, not only in the legislature but also among soda companies and the public at large. There is currently a 31-30 Democratic-Republican split in the state Senate, with a minimum of thirty-two votes needed in order to pass the soda tax. Considering that a number of Democratic senators are opposed to the proposed tax along with the entire Republican conference, it is unlikely that the soda tax bill will be passed in the Senate. However, there may still be hope for Paterson’s soda tax. “If Senate Democratic leader John Sampson keeps it in the fiscal 2011 budget bill, his members would have to reject the entire budget to kill the tax.” Such an extreme measure is highly unlikely.
Where many senators disapprove of the tax based on decreased retail sales and disproportionate burden on the poor, there is still some support for the tax. Mayor Bloomberg supports the tax primarily as a way to find a quick source of revenue in order to prevent cuts to education and health care. During his weekly radio address he stated:
In these tough economic times, easy fixes to our problems are hard to come by. But the soda tax is a fix that makes sense. It would save lives. It would cut rising health care costs. And it would keep thousands of teachers and nurses where they belong: in the classrooms and clinics.
Democratic Assemblyman Jeffrey Dinowitz not only supports Governor Paterson’s soda tax, he would like to see it expanded to all products that contain sugar. In a letter to Paterson Dinowitz encouraged him to consider taxing all products that contain sugar not just beverages. He proposes a $0.001 tax per gram of sugar for all products, including condiments, candy, and breakfast cereals. Why such a drastic and all-inclusive tax? Dinowitz stated, “if we want to take serious action to combat obesity, we shouldn’t limit ourselves to just beverages.” He feels that the Governor’s plan confuses the goal of encouraging people to live healthier with what many would argue is the actual goal-raising money for a failing economy. His plan would seek to raise more revenue by taxing a wider array of products while providing greater incentives to engage in healthy behavior.
As one might expect soda companies vehemently reject Paterson’s proposal. The American Beverage Association, representing Coca-Cola, PepsiCo and Dr. Pepper Snapple Group, has declared the tax a “money grab”. Beverage companies warn legislators to consider lost jobs and increased grocery bills as reasons not to pass the bill. Bottling employees have staged protest in front of television cameras, fearful for their jobs. Their fears are not unfounded, according to some estimates as many as 6,000 New York State jobs could be lost as a result of the soda tax.
Finally there are those that oppose the tax because it disproportionally burdens the poor. One study has suggested that soda is more popular in poorer neighborhoods. It found that New York’s lower income consumer is twice as likely to drink soda and that minorities are two to three times as likely. “Poorer people, who lack healthy food choices, too often overload on sugar-laden soft drinks.” In reality it is the lower-income populations that have the highest incidence of obesity related illness, and it would be those same people that would be most affected by the soda tax.
Regardless of the need to increase revenue in New York State or the desire to prevent cuts to health care and education, isn’t the soda tax really just a way of making the biggest soda consumers as well as those most prone to obesity related illness pay for the choices often associated with being poor? The soda tax on its face may purport to cut soda consumption and reduce obesity related diseases, but it that the reality? The plan does not provide healthy alternatives to lower- income populations to drinking soda; it only raises the price of the still most economically viable option for these same people. While a soda tax may eventually be inevitable much like taxes on cigarettes, it should be presented as what it is – a way to increase revenue in a sinking economy.
 David Burnett, Fast Food Lawsuits and the Cheeseburger Bill: Critiquing Congress’s Response to the Obesity Epidemic, 14 Va. J. Soc. Pol’y & L. 357, 358.
 Stephen D. Sugarman, Performance-Based Regulation: Enterprise Responsibility for Reducing Death, Injury, and Disease Caused by Consumer Products, 34 J. Health Pol. Pol’y & L. 1035, 1044.
 Id.; Burnett, supra note 1, at 359.
 Burnett, supra note 1, at 358.
 Id. at 358-59.
 David Patterson, Commentary: Why We Need an Obesity Tax, CNNhealth.com, Dec. 18, 2008, http://www.cnn.com/2008/HEALTH/12/18/paterson.obesity/.
 New York Soda Tax: Dead on Arrival, Center for Consumer Freedom, Feb. 13, 2009, http://www.consumerfreedom.com/news_detail.cfm/h/3828-new-york-soda-tax-dead-on-arrival.
 NY Soft Drink Tax: Second Verse, as Bad as the First, Center for Consumer Freedom, Jan. 20, 2010, http://www.consumerfreedom.com/news_detail.cfm/h/4081-ny-soft-drink-tax-second-verse-as-bad-as-the-first.
 Bruce Watson, Soda Tax: Is New York Soaking the Poor?, Daily Finance, Mar. 11, 2010, http://www.dailyfinance.com/story/taxes/soda-tax-is-new-york-soaking-the-poor/19388383/; Valerie Bauman, Soda Tax Proposal Falling Flat Among NY Lawmakers, Bus.Wk., Mar. 15, 2010, http://www.businessweek.com/ap/financialnews/D9EFA44G0.htm.
 Valerie Bauman, Soda Tax Proposal Falling Flat Among NY Lawmakers, Bus.Wk., Mar. 15, 2010, http://www.businessweek.com/ap/financialnews/D9EFA44G0.htm.
 Erik Enquist, As Paterson Fizzles, So Does His Soda Tax, crain’s n.y. bus., Mar. 9, 2010, http://www.crainsnewyork.com/article/20100309/FREE/100309866.
 A.G.Sulzberger, Bloomberg Says a Soda Tax ‘Makes Sense’, N.Y. Times, Mar. 7, 2010, available at http://www.nytimes.com/2010/03/08/nyregion/08soda.html.
 Rick Karlin, Dinowitz: Why Not Tax All Sugar?, timesunion.com, Mar. 19, 2010, http://blog.timesunion.com/capitol/archives/23931/dinowitz-why-not-tax-all-sugar/.
 Jeremiah McWilliams, New York Soda Tax Proposal Pours a Big Glass of Controversy, ajc, Feb. 11, 2010, http://www.ajc.com/business/new-york-soda-tax-299255.html.
 Opposition Builds Against New York Soda Tax Proposal, Center for Consumer Freedom, Mar. 9, 2010, http://www.consumerfreedom.com/news_detail.cfm/h/4123-opposition-builds-against-new-york-soda-tax-proposal.
 Watson, supra note 15.
 Ira Stoll, Soda Tax Falls Totally Flat: David Paterson’s Idea, Backed by Mile Bloomberg, is all Wrong, Daily News, Mar. 10, 2010, http://www.nydailynews.com/opinions/2010/03/10/2010-03-10_soda_tax_falls_totally_flat.html.