The Ethical Validity of Health-promoting Taxes on Unhealthy Food and Beverages in the Commonwealth Caribbean

• Author: Shajoe J. Lake
• Pages: 70-95

The Ethical Validity of Health-promoting

Taxes on Unhealthy Food and Beverages in the

Commonwealth Caribbean

Shajoe J. Lake1

Abstract

Using a utilitarian lens, this paper argues that health-promoting taxes on unhealthy

food and beverages in the Commonwealth Caribbean are ethically justied as they

maximize overall utility and promote equity in the long run. It suggests that these taxes

are not inherently regressive but rather raise an initial presumption of regressiveness

and demonstrates that they bring economic, public health, and societal benets that

counterbalance any perceived regressiveness. Moreover, this paper argues that instead

of simply labelling these taxes as regressive or not, we should consider a continuum

of regressivity. It proposes the concept of “uid regressivity”, which allows for a

more accurate assessment of the degree of regressiveness and its impact.

Keywords

Fiscal Measures, Health-promoting Taxes, Unhealthy Diets, Caribbean Food

Policy, Caribbean Health Law

Introduction

Within the Americas, noncommunicable diseases (NCDs) claim the lives of

5.5 million individuals each year, with approximately 2.2 million deaths occurring

prematurely.

2

Within the Caribbean, NCD prevalence rates exceed regional and global

averages.

3

Four main groups of NCDs drive mortality in the region: cardiovascular

diseases, cancers, respiratory illnesses, and diabetes.4 While several modiable risk

factors contribute to increased NCD prevalence, unhealthy diets high in critical

1 Attorney-at-Law and PhD Candidate, School of Law and Center for Interdisciplinary

Methodologies, University of Warwick. Email: shajoelake@gmail.com

2 ‘Noncommunicable Diseases - PAHO/WHO | Pan American Health Organization’ <https://

www.paho.org/en/topics/noncommunicable-diseases> Accessed 31 May 2023.

3 Hilda Razzaghi and others, ‘10-Year Trends in Noncommunicable Disease Mortality in the

Caribbean Region’ [2019] Revista Panamericana de Salud Pública 1.

4 ibid.

71 The Ethical Validity of Health-promoting Taxes on Unhealthy Food and Beverages

in the Commonwealth Caribbean

nutrients, such as sugars, total fats, saturated fats, and sodium have been identied as

key drivers in the region.

5

For Commonwealth Caribbean countries, most of which

are low- and middle-income countries (LMICs), health-promoting taxes represent

a key tool to disincentivise consumption, conguring healthier food environments

through price modications.

The World Health Organization (WHO) and Pan American Health Organization

(PAHO) recommend that governments use incentives and disincentives, including legal

and regulatory measures, to foster healthy environments as part of a comprehensive

strategy to address NCDs.6 Fiscal measures, particularly health-promoting taxes

aimed at reducing the consumption of sugary drinks and products with a high

caloric content and low nutritional value, is identied as a priority recommendation.

7

Citing evidence on the eectiveness of health-promoting taxes imposed on unhealthy

food, public health authorities reckon that taxation is eective to discourage the

consumption on unhealthy food and beverages through price increases.8

Despite compelling evidence supporting the eectiveness of health-promoting

taxes on unhealthy food and beverages as legal interventions within a broader NCD

prevention and control strategy, the food and beverage industry has challenged these

taxes in multiple jurisdictions. In the United States (US), legal challenges have been

raised, alleging violations of state and federal laws.9 Similarly, the constitutionality

5 ‘Noncommunicable Diseases - PAHO/WHO | Pan American Health Organization’ (n 2).

6 World Health Organization, Global Action Plan for the Prevention and Control of Noncommunicable Diseases

2013-2020 (World Health Organization 2013) <https://apps.who.int/iris/handle/10665/94384>

accessed 23 May 2023; Pan American Health Organization, Plan of Action for the Prevention and

Control of Noncommunicable Diseases in the Americas 2013-2019 (2014) <https://iris.paho.org/bitstream/

handle/10665.2/35009/9789275118443_eng.pdf?sequence=1&isAllowed=y> Accessed 23 May

2023; PAHO/WHO, Plan of Action for the Prevention of Obesity in Children and Adolescents (2015)

<https://iris.paho.org/handle/10665.2/49138>.

7 Pan American Health Organization, Plan of Action for the Prevention and Control of Noncommunicable

Diseases in the Americas 2013-2019 (n 5); PAHO/WHO (n 5).

8 Lawrence O Gostin and Lindsay F Wiley, Public Health Law: Power, Duty, Restraint (3rd edn, University

of California Press 2016) <https://www.jstor.org/stable/10.1525/j.ctv1wxsrj> accessed 26 May

2023; Lawrence O Gostin, ‘A Theory and Denition of Public Health Law’ (6 October 2000)

<https://papers.ssrn.com/abstract=242580> Accessed 26 May 2023; Michelle M Mello, David

M Studdert and Troyen A Brennan, ‘Obesity — The New Frontier of Public Health Law’ (2006)

354 New England Journal of Medicine 2601; ‘Health Taxes - PAHO/WHO | Pan American

Health Organization’ .paho.org/en/topics/health-taxes> accessed 24 May 2023;

World Health Organization, Global Action Plan for the Prevention and Control of Noncommunicable Diseases

2013-2020 (n 5); Jeremy A Lauer and others (eds), Health Taxes: Policy and Practice (World Scientic

2022).

9 Sarah Roache and others, ‘Big Food and Soda Versus Public Health: Industry Litigation Against

Local Government Regulations to Promote Healthy Diets’ (4 June 2018) <https://papers.ssrn.