Enticing Business to Create a Healthier American Diet: Performance‐Based Regulation of Food and Beverage Retailers

• Date: 01 January 2014
• Author: Stephen D. Sugarman
• DOI: http://doi.org/10.1111/lapo.12012
• Published date: 01 January 2014

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Enticing Business to Create a Healthier

American Diet: Performance-Based Regulation

of Food and Beverage Retailers

STEPHEN D. SUGARMAN

The American public could enjoy a much healthier diet if we enticed food and

beverage retailers (stores and restaurants) to substantially reduce the calories,

added sugar, sodium, and saturated fat that pass through their cash registers—

say, a 25 percent reduction in sugar, salt, and fat and a 10 percent reduction in

calories. Rather than ordering firms to make specific changes in what they sell,

this strategy—called performance-based regulation—leaves industry to figure out

what is the best way to transform the American diet in a positive way. Because

it calls for real changes in outcomes, this regulatory strategy could be far more

effective than information disclosure policies that rely on consumer choices, and

because it does not require adding extra cost to the price of food and beverages, it

could be politically far more attractive than taxing unhealthy foods. Appealing to

both conservative and liberal values, instead of relying on the professional exper-

tise of public health regulators, performance-based regulation enlists America’s

large food retailers to serve the public good—or suffer substantial financial

penalties for failing to do so.

I. THE AMERICAN DIET: A PUBLIC HEALTH PROBLEM

Today’s American diet is unhealthy. Of course, many individuals eat very

well, are quite fit, and in fine health. But public health officials, medical

leaders, and nutrition scientists agree that, overall, our national diet is poor.

The mainstream consensus is that people consume too many calories, and,

in particular, our diet contains too much added sugar, saturated fat, and

sodium (U.S. Department of Agriculture [USDA] and Department of Health

and Human Services 2010). The most visible consequence of our overindul-

gence is the shocking level of obesity in America, a condition that pervades all

ages, races, and social classes, although obesity is an even greater problem

Address correspondence to Stephen D. Sugarman, UC Berkeley—Law, 327 Boalt Hall School

of Law, Berkeley California 94720-7200, USA. Telephone: (510) 642-0130; E-mail: sugarman@

law.berkeley.edu.

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LAW & POLICY, Vol. 36, No. 1, January 2014 ISSN 0265–8240

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12012

for racial and ethnic minorities (U.S. Centers for Disease Control and

Prevention [CDC] 2013a). Whether or not what is termed obesity (i.e., a high

body mass index) is by itself unhealthy (Guthman 2011), most experts agree

that excess consumption of added sugar and saturated fat brings with it a

host of negative health consequences, including high blood pressure, dia-

betes, heart disease, and so on (CDC 2013b). These in turn lead to burdened

lives and an estimated more than 300,000 deaths per year, making poor-diet-

caused obesity the second most preventable cause of death (second to

tobacco use) (Mokdad et al. 2004; Allison et al. 1999). Although also not

without controversy, excess sodium consumption, via the salt added to pro-

cessed and restaurant food, is widely thought to be an enormous source

of disease, albeit less visibly so, leading to another 100,000 early deaths

per year according to a Report of the American Medical Association

(Bibbins-Domingo et al. 2010; Dickinson and Havas 2007; but see, Storm,

Yaktine, and Oria 2013). Besides harming consumers and their families,

Americans as a whole pay for these bad health consequences in the form of

the ever-increasing costs of medical care these victims require.

II. PERFORMANCE-BASED REGULATION SOLUTION AS

COMPARED WITH OTHERS

What should be done? A new policy approach relies on a strategy called

“performance-based regulation” (Coglianese, Nash, and Olmstead 2003; May

2003). Performance-based regulation would set dietary outcome targets to

which individual regulated enterprises would be held. My proposal calls

initially for aggregate reductions of 25 percent in the amount of added sugar,

salt, and saturated fat, plus a 10 percent reduction in total calories, in the total

package of food and beverage items that pass through the cash registers of

retailers (both stores and restaurants). The regulated enterprises then would

have to decide, behind the scenes, how to achieve those dietary outcome

targets in the most efficient way. Failure to achieve their regulatory targets

would subject food and beverage retailers to substantial financial penalties.

Performance-based regulation is not a new invention. The approach has

been applied in other contexts, for example, to improve public education or

to address climate change. The innovation here is envisioning how such a

regulatory approach could be applied to improving the American diet. As

discussed below, while performance-based regulation can have its own prob-

lems, there is reason to believe that, on balance, it might be a very promising

strategy for addressing the current challenges facing the American diet.

Note the sharp contrast between my proposal and the positions taken by

others regarding this enormous public health problem. Many conservatives

argue that our unhealthy national diet reflects a failure of personal respon-

sibility and, therefore, the solution requires simply urging people to take

individual actions to eat in a healthier way and make sure their children do

92 LAW & POLICY January 2014

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary