African Countries Must Consider Legal Challenges to Sugar Taxes Before Pursuing Policies

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Sales of unhealthy foods and beverages in sub-Saharan Africa are skyrocketing. This is leading to an increase in obesity related conditons such as diabetes, hypertension and cardiovascular disease.

These diseases are projected to become the leading cause of death in sub-Saharan Africa by 2030, overtaking communicable diseases like HIV and TB. The economic cost of noncommunicable diseases is immense. They result in significant disability, and can be very expensive to treat. In South Africa, the medical cost of diabetes was R2.7 billion in 2018.

But noncommunicable diseases are preventable. The economic and societal impact can be mitigated if governments take decisive action to reduce the availability of harmful products such as unhealthy food, alcohol and tobacco.

Sugar-sweetened beverages are among the most harmful food products to consumers. This is because liquid sugar is especially toxic and these drinks have no nutritional value.

One of the key ways to address the growing public health impact of sugary drinks is by introducing laws, policies and regulations. These measures could limit the availability of unhealthy products and make it easier to encourage people to eat healthy food. But they must be implemented as a combined effort.

There are a number of proven interventions to reduce the consumption of sugary drinks. These include limiting portion sizes, banning them from schools and checkout isles of supermarkets and taxing sugar-sweetened drinks.

But these measures have been challenged legally and by other means by the companies that produce and sell sugary drinks.

In 2012, then New York City mayor Michael Bloomberg introduced a regulation limiting the portion sizes of sugar-sweetened drinks sold around the city. The beverage industry and retailers challenged this decision in court and the policy was rolled back. South Africa's efforts to introduce a tax on sugar-sweetened beverages faced threats of legal challenges. These were based on a range of technicalities from a lack of public participation to challenging the purpose of the tax. In this case, the objections only delayed the tax rather than stopping it.

Even if these law suits are unsuccessful, they can have a chilling effect on other actions to prevent noncommunicable diseases. Legal challenges to government efforts to address the availability of unhealthy food and drinks can seriously undermine public health.

This is why countries must carefully consider the legal feasibility of an intervention before deciding how to implement it. We developed a way in which countries can consider doing this. It involves an assessment of the potential legal barriers to, and as well as the facilitators of, the proposed intervention.

The landscape

Our study looked at the legal feasibility of introducing a tax on sugar-sweetened beverages in seven sub-Saharan African countries: Botswana, Kenya, Namibia, Rwanda, Tanzania, Uganda, and Zambia. We looked at four different types of sugary drinks taxes that had been introduced around the world and whether these could be introduced in each of these countries.

We assessed each country's legal barriers and facilitators. These included their legal and taxation regimes. We also examined broader regional agreements and the infrastructure needed to implement such a tax.

We considered taxes implemented in various countries around the world and chose to evaluate the four taxes adopted in Mexico, Colombia, the UK and South Africa under this study. The tax introduced in Mexico added a fixed amount on each litre of soft drink. The taxes in South Africa and the United Kingdom link the amount of tax payable to the sugar content of a drink. And Colombia decided to remove a value added tax exemption from sugar-sweetened beverages. With the exception of Colombia's approach, most of these taxes are introduced as an excise tax.

Our research showed that all seven sub-Saharan African countries had existing excise tax legislation. And five countries already taxed sugar-sweetened beverages. However, these existing taxes worked to generate revenue for governments rather than improve public health as the taxes did not differentiate between sugary and non-sugary drinks. For example, Rwanda had a tax of 39% on carbonated beverages but sugary drinks remained a cheap beverage option.

In addition, countries have an obligation to introduce measures to protect the health of their citizens. These obligations are set out in treaties like the African Charter on Human and Peoples' Rights and domestic constitutions which contain rights to nutritious food or health.

Our research also showed that there were existing laws that could be used as a foundation to adopt a sugar-sweetened beverage tax to improve public health. For example, Uganda had a dedicated HIV fund which was funded entirely by a 2% levy on drinks (including soft drinks and bottled water). Both Tanzania and Kenya had an agricultural levy on sugar, the proceeds of which were used to support sugar farmers.

The existence of supportive legal frameworks such as human rights could also be used to defend against potential challenges to a public health measure like this.

The introduction of taxes on sugar-sweetened beverages in Mexico and South Africa resulted in the reduced consumption of sugar and sugary drinks consumption within a year or two after the implementation of the tax. These reductions can lead to significant health benefits, particularly in people who consume a lot of sugary drinks. In addition, these taxes are a particularly good intervention because they can help governments generate additional tax revenues.

Looking ahead

Our research shows that sugar-sweetened beverage taxation in the seven countries is legally feasible. Existing laws can provide a strong starting point for the introduction of a sugar-sweetened beverage tax. In addition, the adoption of such a tax is a way for governments to meet their human rights obligations without having to worry about legal challenges undermining the intervention.

Legal feasibility and the health impact of these interventions are only one part in the complex political economy of adopting noncommunicable disease prevention interventions. Research has shown that the political environment and industry pushback against measures like sugar taxation are also important hurdles that need to be overcome.

Governments must take urgent action to prevent noncommunicable diseases from becoming an uncontrollable epidemic in sub-Saharan Africa. Sugar-sweetened beverage taxation offers a potential solution.

Safura Abdool Karim, Senior researcher, University of the Witwatersrand and Karen Hofman, Professor and Programme Director, SA MRC Centre for Health Economics and Decision Science - PRICELESS SA (Priority Cost Effective Lessons in Systems Strengthening South Africa), University of the Witwatersrand

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