The Potential for Federal Preemption of State and Local Sugar-Sweetened Beverage Taxes

Abstract

Federal, state, and local governments each have a role to play in protecting health. President Obama recognized that “state and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.”1 Yet, the federal government can hinder state and local activity through preemption, which is “when a higher level of government restricts, or even eliminates, a lower level of government’s ability to regulate an issue.”2 State governments can similarly preempt local law. Industries subject to regulation may support preemption in order to facilitate compliance with a uniform or less stringent standard, or to create a regulatory vacuum.3 From a public health perspective, preemption can be used to impede progress, innovation, local self-determination, and grassroots movements.3 Conversely, preemption can be used as a tool to advance public health if it provides minimum standards or prohibits laws that would undermine health. In the area of food and nutrition, express preemption is routinely included in certain federal laws, such as food labeling (i.e., nutrition, menu, and genetically modified organism labeling laws). In recent years, there has been an upsurge of state preemption of various local food policies.3 For example, in 2016, Kansas preempted local regulations related to food-based health disparities, nutrition labeling, portion size, and restaurant incentive items, among other things.3 Additionally, state legislatures are increasingly employing preemption strategically to block other progressive measures, such as increased minimum wage, paid leave, and anti-fracking.3 Could preemption of a similarly politically charged measure—sugar-sweetened beverage (SSB) taxes—be next? SSB taxes have been enacted in seven U.S. cities, and are being considered in multiple states and municipalities. But state and local laws are subject to potential preemption by the federal government. In light of the rise in SSB taxes, health consequences of consuming SSBs,4 and recent change in the federal administration, it is crucial to assess the potential basis for federal preemption of SSB taxes. As discussed below, Congress has the constitutional authority to preempt state and local tax laws. The aim of the present research was not to assess this constitutional authority, but to understand what might motivate federal legislators to preempt SSB taxes. As such, the authors analyzed the legislative histories of federal bills and laws that had a central and express purpose of preempting state taxes. The research uncovered Congressional preemption of state taxes related to national programs and in the context of federal regulation of interstate commerce. This article discusses the legislative histories related to these acts and considers whether the rationales upon which they are based apply to SSB taxes.