BIG SODA: TOO SWEET TO FAIL?

Author:Kaplan, Cara
 
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Introduction 1268 I. How Could Something So Sweet Be So Dangerous? 1272 A. The Problem with Sugar 1273 B. What Makes Soda So Bad? 1275 C. Soda and the Obesity Crisis 1277 D. Sugar versus Fat: How the Food Companies Sculpted the Public Health Narrative 1279 II. The Battle of the Bulge (aka, Love Handles) 1282 A. Federal Action: Lobbying and the Existing Revolving Door 1282 B. Successful Federal Regulation: The FDA Takes Action 1285 C. Local Governments Take Action 1287 1. New York City Soda Cap 1287 2. Philadelphia Soda Tax 1289 D. Self-Regulation Within the Industry 1292 E. Consumer Product Liability Law 1293 F. Obesity Litigation: Pelman v. McDonald's Corp. 1295 G. Tobacco Litigation 1298 III. The Bitter Truth of Potential Solutions 1302 A. Renewed Litigation Efforts: No Sugar-Coating 1303 1. Design Defect 1304 2. Failure to Warn 1305 B. Sweet Success: Increasing Local and State Government Action 1310 Conclusion 1316 INTRODUCTION

As much as Americans love sugar, overconsumption can turn something so sweet into something deadly. Excessive sugar consumption is linked to obesity and an increased risk of heart disease. (1) The rise in obesity rates is clearly correlated with the increase of sugar in the American diet--between 1980 and 1990, United States obesity rates rose parallel to increases in the production of sugar in the food supply, with similar trends continuing into the twenty-first century. (2) Obesity is a serious condition that can cause severe health problems (3) and even death. (4) Additionally, the estimated direct and indirect costs of obesity have risen to a staggering $190 billion each year. (5) Some experts adamantly assert that sugar is the cause of obesity and advocate that a reduction in sugar intake could have significant health benefits within the United States. (6)

Dr. William Dietz, a preventative health expert at George Washington University, explains that "[w]e know that sugar intake is an important contributor to obesity, and... soft drinks and soda and juices are a major source of sugar calories." (7) As a major source of sugar calories, sodas alone account for one third of daily American sugar consumption (8) and, therefore, reducing soda consumption is a meaningful way to reduce sugar intake. For example, a single twelve ounce can of Coca-Cola contains thirty-nine grams of sugar (or ten sugar cubes), approximately 156 and 108 percent of the daily recommended sugar intake that the American Heart Association ("AHA") recommends for women and men, respectively. (9) Sodas pose various health risks, as the ingredients in soda, most notably sugar, are linked to a number of health conditions, including "obesity, type 2 diabetes, coronary artery disease, stroke dental disease, bone disease, gout, asthma, cancers, rheumatoid arthritis, behavioral problems, [and possibly] addiction." (10) While many believe diet is an individual choice, large food corporations, including big soda companies, have undue influence over how society views nutrition, diet, and their specific products. (11) Individuals and governments should hold these large corporations, and specifically soda companies, accountable for creating products that contain extreme levels of sugar. Only then will the companies be forced to acknowledge the inherently dangerous qualities of their products and modify them to create a safer dietary environment for children and adults alike.

Data shows that certain populations are more likely to drink regular soda (with large amounts of sugar) and are therefore more vulnerable to the significant health risks noted above. (12) The Beverage Marketing Corporation (13) routinely collects information about soda consumers and analyzes consumption within certain demographic groups. (14) This data shows that blue-collar workers and those earning less than $10,000 engage in "higher-than-average soda" intake than the overall population. (15) Hispanic and African Americans also consume more soda and exhibit an increased occurrence of obesity and type 2 diabetes than white Americans. (16) Approximately seventy percent of Hispanic and African Americans reported routinely drinking regular (sugar-sweetened) sodas, and these populations are more likely to consume regular soda when compared to the overall population. (17) These figures, taken together, paint a clear picture--minority populations living in low-income areas are more likely to engage in overconsumption of soda, and therefore have increased exposure to the resulting health dangers. (18)

The soda industry's intentional marketing practices, not individual choice, create this increased risk. First, the soda industry specifically targets Hispanic and African American communities. (19) Both Pepsi and Coca-Cola market to these populations and also use seemingly charitable contributions to form relationships with these communities. (20) Many leaders within the Hispanic and African communities have noticed, and have begun distancing themselves and denouncing soda companies. (21) These leaders recognize that health concerns relating to obesity are blighting their communities and place significant blame on the soda companies. (22) Second, these minority communities are not choosing increased exposure to soda and the health risks contained therein. Those living in low-income, urban populations often have limited or no access to healthy food options. (23) Even when minority populations living in urban areas have physical access to fresh and healthy foods, low-income individuals may not be able to afford the often hefty and unattainable price tag. (24) Ultimately, through limited access to healthy alternatives and the specific targeting of minority groups, these often urban populations are more susceptible to overconsumption and are more vulnerable to the health risks indicated by consuming large amounts of sugary sodas. (25) Therefore, minority and urban communities are disproportionately impacted by the dangerous health risks inherent in overconsumption of sugary sodas. (26)

This Note addresses the current health risks that can arise from consuming large or excessive volumes of sugary sodas and offers legal proposals to prevent further harm. Section I.A provides background information about the current public health crisis related to the rise in obesity and diabetes among Americans. Section I.B offers insight into the use of sugar by large food corporations. Section I.C describes Big Soda's intentional use of sugar within its products. Part II examines potential approaches to addressing the current health concerns, including the effectiveness of federal and state governments, past food litigation, and finally reviews the success of previous tobacco litigation. Part III identifies the most successful avenues and legal theories that will best protect consumers in future years.

  1. How COULD SOMETHING SO SWEET BE SO DANGEROUS?

    The current health crisis did not develop overnight. Since 1958, the percentage of Americans diagnosed with diabetes rose by 700 percent. (27) This rise in diabetes is not disappearing anytime soon, as one in three Americans born after 2000 will be diagnosed with early-onset diabetes. (28) Additionally, since 1980 the percentage of the United States' population that is obese has increased. (29) Both obesity and diabetes pose serious health risks, and are largely preventable by eating a healthy diet. (30) Obesity and diabetes are serious health conditions in themselves, but they also increase the likelihood of metabolic syndrome, coronary heart disease, and even cancer, among other diseases. (31) In addition to the serious health concerns posed by the rise in obesity, this disease poses significant economic costs. In 2001, the estimated annual direct and indirect cost of obesity was $117 and rose to $190 billion a year in 2012. (32)

    As obesity rates and the number of Americans diagnosed with type 2 diabetes have increased in recent decades, so too has the consumption of sugar within the United States. (33) This correlation has led many researchers and experts to conclude that overconsumption of sugar is linked to obesity and diabetes, two health and diet related diseases. (34) In addition to sugars in everyday foods, sweetened sodas interact differently with the body. (35) Some scholars believe that consuming sugar through soda leads to sugar overconsumption, and therefore sodas are a large cause of the obesity epidemic. (36)

    1. The Problem with Sugar

      Sugar, in moderation, is a perfectly acceptable part of any nutritious diet. (37) The issue is what constitutes an excessive amount or an overconsumption of sugar that can reach a dangerous level. The risk of heart disease death begins to increase when fifteen percent of daily calories come from added sugars and increases significantly above that fifteen-percentage threshold. (38) With that in mind, "[i]n the United States, children are said to consume an average of 16 percent of their daily calories from sugars added to foods and drinks, and adults 13 percent." (39)

      Considered in pounds of sugar per person per year, by the early twenty-first century, the U.S. Department of Agriculture ("USDA") calculated that on average, Americans consumed over ninety pounds per person per year. (40) Further demonstrating the mass availability of sugar, in 2011, the U.S. supply produced domestically (less exports, plus imports) totaled nearly 132 pounds per capita. (41) Both domestic and global health organizations recommend a much smaller daily sugar intake. (42) The AHA recommends men consume no more than nine teaspoons (or thirty-six grams) of added sugar a day and women consume no more than six teaspoons (or twenty-five grams) of added sugar a day. (43) In pounds, the AHA recommends men and women consume approximately twenty-nine and twenty pounds of sugar annually, roughly one third of the current average consumption. (44) Globally, the World Health Organization ("WHO") strongly recommends...

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