By Seth Weintraub


As of November 8, 2016, four more cities voted on, and passed, legislation taxing soda.[1] Taxation will raise the cost of soda by two cents per every ounce.[2] This legislation passes as Philadelphia’s soda tax faces its own legal challenges; namely the constitutionality of the tax.[3] Taxation on soda is not unheard of; New York’s one cent per ounce tax ended quickly in 2010.[4] These taxes bear a striking resemblance to that of a sin tax: taxing items or acts that are legal, however, viewed in the eyes of the public as morally dubious.[5] Through the taxation of soda, the words taxation and representation gather a new, more profound meaning.[6]

The government may encourage some activities, while discouraging others, through the taxation system.[7] The government of these sin tax cities rationalize these taxes by citing the United State’s drastic obesity rates[8] while also applauding the projected income the taxes will generate.[9] Almost immediately, however, big soda industries such as the American Beverage Association doubled their efforts to prevent this from occurring: since 2014, the spending on lobbying and campaigning against taxation on soda rose from $14 million to $37.7 million.[10]

As altruistic as the tax may seem, it poses a number of problems. Higher taxes on the sugary drinks incentivize tax evasion, spurring the growth of illegal black-market sales.[11] At the same time, the tax disproportionately affects lower income people over the wealthy.[12] Would legislation be better, then, by incentivizing healthier foods over punishing unhealthier foods; subsidizing healthier foods, for example?[13] With these negatives, then, is the government really looking out for the consumer, or is this just the first step in overreaching on a person’s autonomy?

To assess the effectiveness of a soda tax, economists look at sodas’ sensitivity to its price elasticity of demand.[14] Evidence shows that soda demand is reasonably elastic;[15] an increase in price, vis a vis a tax, would decrease the demand for soda.[16] As a city is a relatively limited area regarding an entire state, a tax could also influence zoning regulations.[17] The soda tax may be the gateway for legislation to tax all sugar rather than just sugary drinks.[18] By labeling soda with a negative stigma because of its lack of health benefits, a slippery slope is created to other items the public may look upon with disfavor. In a society where consumers are becoming more health conscious[19], a single molecule of sugar may become dangerous and therefore taxed.[20] As thoughtful as the tax is, the consequences are far too broad an imposition for the rapidly growing healthy consumer; as such, the government may need to find another, more appropriate means to raise revenue and fight obesity.


[1] Erin Schumaker, 6 Public Health Victories From The Election Night You Might Have Missed, The Huffington Post (Nov. 10, 2016), (adding San Francisco, Oakland, and Albany, California as well as Boulder, Colorado to the list of cities regulating soda via taxation).

[2] See Julia Belluz, In a Devastating Blow to the Beverage Industry, 4 Cities Passed Soda Taxes, Vox (Nov. 9, 2016),

[3] See generally Claudia Vargas, City Responds to Soda Tax Lawsuit, (arguing the tax is preempted through state sales tax which applies to sweetened beverages, violating a state law requiring same-rate taxation on similar products. The city rejects this argument in its brief, arguing only distribution-level transactions, which the Pennsylvania Sales and Use Tax does not tax, will feel the weight of the tax).

[4] See J. Angelo DeSantis, Formulating a Soda Tax Fit For Consumption: A Pragmatic Approach to Implementing the Failed New York Soda Tax, 16 Mich. St. J. Med. & L. 363, 364 [hereinafter Fit for Consumption].

[5] See generally Symposium, We Are What Wetax[sic] the Semantics of Sin Tax: Politics, Morality, and Fiscal Imposition, 84 Fordham L. Rev. 2565 (alluding to other sin taxes, such as tobacco, alcohol, and speeding tickets) [hereinafter Semantics of Sin Tax].

[6] Id. at 2579 (“But here, I mean symbolic representation, underscoring that taxes can serve as a vehicle for the conveyance of collective or public meanings, not just for the deployment of purchasing power.”).

[7] See id. (listing taxation as only one option for regulation, another being outright ban, or prohibition).

[8] Overweight and Obesity Statistics, U.S. Department of Health and Human Services, (68.8 % of adults are considered to be overweight or obese).

[9] See Andrew M. Ballard, Philly Soda Tax Case Fizzles Out At Top State Court, Bloomberg BNA (Nov. 3, 2016), (“Philadelphia’s City Council approved the tax in June to provide funding for pre-kindergarten, community schools and improvements to parks, recreation centers and libraries. The assessment, a 1.5 cent tax per ounce on sugar- and artificially sweetened soft drinks and other beverages, is expected to generate about $91 million a year.”).

[10] Belluz, supra note 2.

[11] Semantics of Sin Tax, supra note 5, at 2568.

[12] See DeSantis, supra note 4 (citing Jeremiah McWilliams, New York Soda Tax Proposal Pours a Big Glass of Controversy, Atlanta J.-Const. (Feb. 11, 2010),

[13] See Brian Galle, Tax, Command … or Nudge?: Evaluating the New Regulation, 92 Tex. L. Rev. 837, 887 n. 268 (citing Gideon Yaniv et al., Junk-Food, Home Cooking, Physical Activity and Obesity: The Effect of the Fat Tax and the Thin Subsidy, 93 J. Pub. Econ. 823, 826-27 (2009) (articulating how subsidies for healthy foods may increase the demand for unhealthy foods through income effect) (emphasis added) (2014).

[14] Elasticity of Demand, Ag Decision Maker (July, 2007), “An elastic demand is one in which the change in quantity demanded due to a change in price is large. An inelastic demand is one in which the change in quantity demanded due to a change in price is small.”

[15] See generally Soft Drink Taxes a Policy Brief, Rudd Report (2009); see also Deborah L. Rhode, Obesity and Public Policy: A Roadmap for Reform, 22 Va. Soc. Pol’y & L. 491, 509 (2015).

[16] See generally

[17] See generally Rhode, supra note 15 at 514-15 (anticipating soda tax zoning cause-and-effects by analyzing Los Angeles’s moratorium on free-standing fast food locations in South Los Angeles).

[18] See DeSantis, supra note 4, at 397.

[19] See Elwood D. Watson, Younger Consumers Are Trending Toward More Health-Conscious Eating, The Huffington Post (Feb. 9, 2015), (polling that 41 % of Generation Z, those less than 20 years old, would be willing to pay more for healthier products).

[20] See DeSantis, supra note 4, at 397 (directly taxing sugar could pose an administrative nightmare, causing taxation on many more products than just sugar).

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