Big Soda’s Sneaky Tactic Undermining Democracy

Often passed behind closed doors without public deliberation, preemption bills and amendments are a 'quiet threat to public health.'

Digging Deeper

Faced with mounting pushback against sugar-sweetened beverages, Big Soda is turning to preemption bills to thwart community organizing. Photo by Gerry Dincher.

On October 26, 2017, Michigan’s governor signed into law HB 4999, which bans local governments from passing taxes on soda (or any other food or beverages). Approved without much fanfare, the bill blocks every city and county in the state from pursuing a sugary drinks tax, a popular measure that first passed in Berkeley, California in 2014 and has since been adopted in eight cities nationwide.

Faced with mounting concern about the impact of sugar-sweetened beverages – and with soda taxes proving to be a powerful tool to curb consumption and bring in much-needed revenue – Big Soda is turning to preemption to thwart community organizing.

Preemption is a time-tested industry tactic to combat citizen movements to protect our health, civil liberties, and the environment. The strategy can be traced back to nineteenth-century “ripper bills” – state laws that took away community control over finances, utilities, police, and local charters. Today’s new wave of preemption, like the bill passed in Michigan and a similar one adopted in Arizona this year, are also picking up lessons from the tobacco industry and the National Rifle Association.

In response to citizen outcry over the health impact of cigarettes that led to a wave of antismoking ordinances in the 1970s, Big Tobacco worked to pass state preemption policies that barred such community ordinances. The National Rifle Association similarly used preemption to combat strong local gun-control measures that many communities began adopting in the 1990s.

While to date only two states, Michigan and Arizona, have passed preemption bills specifically preventing cities and counties in those states from passing a tax on sugary drinks, similar policies are popping up around the country. As I was reporting on this article, news broke that a lawmaker in Pennsylvania is pursuing one there.

While none of these bills mention sugary drink taxes by name, they simply ban all local food and beverage taxes, or effectively prohibit them by requiring that all taxes on food products must be “uniform.” In other words, taxes cannot target unhealthy products to the exclusion of others, making them impractical. Industry spin tries to pass them off as pro-people policies. As Tim McCabe, of the industry-funded Food Marketing Alliance, said in support of the Michigan bill: It’s “not government’s role to use taxes to influence consumer behavior.” (I guess McCabe is unfamiliar with the taxes on booze and cigarettes that aim to do exactly that.)

Often passed behind closed doors without public deliberation, preemption bills and amendments are a “quiet threat to public health,” write Jennifer Pomeranz of NYU and Mark Pertschuk of Grassroots Change.

“You stop Santa Fe’s tax with misleading ads and money from out of state, but Santa Fe can come back. With each win, the soda industry gets weaker and the people get stronger,” Pertschuk says, referring to the city of Santa Fe’s effort to pass a tax for sugary drinks that failed, thanks largely to big spending by Big Soda. But, he says, “if you pass preemption like they did in Michigan or Arizona then all progress on that issue is killed.”

So far, apart from Michigan and Arizona, similar preemption bills have been blocked in other states. Pertschuk says dozens of states would have had similar preemption laws were it not for community organizing. That’s the good news. The bad news is, like the invasive kudzu, preemption keeps coming back.

In the shadow of Big Soda taking a page from Big Tobacco’s playbook, health advocates can get inspired by anti-smoking crusaders who stood up to preemption policies. As Pertschuk explains: “Today, there are 1,440 strong smoke-free ordinances around the country. That’s what Big Soda is afraid of: thousands of local sugar-sweetened beverage taxes funding really great programs for the community and demonstrably reducing consumption and by extension diabetes.”

State and federal policies should protect healthy communities. But cities and counties that want to take even bolder action to protect public health, and decide on what those policies are through good-old fashioned deliberative democracy, should be able to. Preemption blocks communities from doing just that – and in so doing guts the very heart of democracy.