By Maxine van Ekelenburg, LLM Global Criminal Law & LLM candidate International Human Rights Law

The opportunity to live a healthy life is not dependent on coincidence: the life-expectancy of Dutch citizens with a lower socio-economic position is seven years shorter than that of their counterparts that have enjoyed higher education and earn higher salaries.[i] The sugar-tax is a cog in the whole, but effective when it comes to one of the factors of this health-inequality: unhealthy food choices. In its coalition agreement, the new cabinet promises to take steps, but it is time for concrete action and a firm policy of clear information, education and cheaper healthy products, with at its centre the sugar tax.[ii]

The sugar tax, an additional tax on products with high sugars content or only sugary drinks, has been described by the World Health Organization as an effective step in the fight against the global obesity epidemic, supported by success stories from countries such as the United Kingdom.[iii] However, the measure does not appear to be popular in the Dutch political and public landscape. The reluctance of implementing a sugar tax and a lack of political willingness has been especially evident in the actions of the former cabinet, opting to rather focus on soft measures as the promotion of healthy diets through information campaigns than on supposedly hard ones that may interfere with the freedom to choose.[iv] Initiatives to combat obesity and promote a healthier lifestyle, such as the National Prevention Agreement, mainly take the form of agreements with relevant organizations and the food and drink industry.[v] But without new legislation binding the parties involved, the National Prevention Agreement is a .[vi] The coalition agreement outlines a promising future when it comes to legal measures such as the sugar tax, but "we are considering how we can introduce a sugar tax in the long run"[vii] gives little indication of concrete action.

One of the factors that contributes to health inequalities is the higher average of consumption of unhealthy products by people in a vulnerable socio-economic position, which results in a higher prevalence of overweight and non-communicable diseases, such as cancer and diabetes.[viii] Unhealthier products are more likely to fit into a small budget than healthy alternatives. Therefore, a price increase following a sugar tax will have the greatest impact on this group, possibly resulting in lower consumption and better health. However, a sugar tax can also have a regressive effect: higher prices and the absence of suitable alternatives can lead to a greater budgetary inequality.[ix] It is therefore important to take into account possible negative effects of the sugar tax.

Why should the government interfere with the individual's free choice when it comes to filling their shopping cart? Article 12 International Covenant on Economic, Social and Cultural Rights (ICESCR) describes the human right of “everyone to the enjoyment of the highest attainable standard of physical and mental health” and the duty of the state to take measures to ensure this right.[xi] In the context of health-inequality, it is also interesting to highlight the human rights principle of non-discrimination and equality.[xii] Every person has the right to health and consequently everyone should have an equal chance at a healthy life, especially if one factor of this discrepancy can be combated.

The right to health includes the underlying factors of health, such as nutrition, and an obligation on the state to support individuals in pursuing a healthy lifestyle.[xiii] In the context of health and nutrition, the state has a duty to protect individuals from, among other things, negative influences from the food and beverage industry, and to fulfil the right to health through, for example, legal and promotional measures, such as the sugar tax.[xiv]

But a sugar tax alone is not enough to achieve a constructive result, especially given the possibility of a regressive effect on the group it is mainly aimed at. A combination with subsidizing the price of healthy products, such as fruit and vegetables, can be an important factor in the success of a sugar tax and the promotion of healthy choices.[xv] Fortunately, the coalition agreement includes the aspiration to reduce the added-value tax on fruit and vegetables to zero, however this endeavour has currently found its nemesis in the form of technological problems hampering its implementation.[xvi] Additionally, the tax revenues generated from the sugar tax could be spent on projects and subsidies related to healthy diets and groups with a low socio-economic position.

It is also important to combine the introduction of a sugar tax with the provision of clear information. Based on the right to health in combination with the right to information (e.g. art. 19 ICCPR), the government will have to support its citizens in making well-informed choices by offering accurate and clear information and raising public awareness of the effects of unhealthy diets.[xvii] The importance of information in the context of a healthy lifestyle is also emphasized by the World Health Organization, as well as the Commission on Economic, Social and Cultural Rights.[xviii]

It is time to leave terms like “considering” and “in the long run” behind and shift towards concrete action. It is time to implement the sugar tax, accompanied by cheaper fruit and vegetables, and the provision of clear information.

[i] Raad voor Volksgezondheid en Samenleving, ‘Een eerlijke kans op gezond leven’ (RVS, 2021),  p. 10.

[ii] VVD, D66, CDA & ChristenUnie, ‘Omzien naar elkaar, vooruitkijken naar de toekomst: coalitieakkoord 2021-2025’ (2021), p. 33. See also the blogpost of Brigit Toebes on the lack of an integral approach to public health in the new coalition agreement, B. Toebes, ‘Blog coalitieakkoord #2: De schrijnende afwezigheid van een integrale volksgezondheidsbenadering’ (Global Health Law Groningen Blog, 2022), https://www.rug.nl/rechten/onderzoek/expertisecentra/ghlg/blog/blog-coalitieakkoord-2-de-schrijnende-afwezigheid-van-een-integrale-volksgezondheidsbenadering

[iii] WHO, ‘Health Taxes: a Primer’ (WHO, 2019) and WHO, ‘Fiscal policies for diet and the prevention of noncommunicable diseases’ (WHO, 2016).

[iv] Ministerie van Volksgezondheid, Welzijn en Sport, ‘Brief staatssecretaris Volksgezondheid, Welzijn en Sport: rapport RIVM onderzoek suikertaks’ (3 September 2020) 1732352-209021-VGP, <https://open.overheid.nl/repository/ronl-e35f5de2-6d9a-4034-a2f3-ac53fd713e6d/1/pdf/kamerbrief-over-rapport-rivm-onderzoek-suikertaks.pdf>. See also B. Toebes, ‘Blog coalitieakkoord #2’, supra note 2.

[v] Ministerie van Volksgezondheid, Welzijn en Sport, Nationaal preventieakkoord (Rijksoverheid, 2018).

[vi] Bjarn Eck, ‘Voedings-en alcohollobby fnuiken preventieakkoord’ (De Volkskrant, 11 April 2019) <https://www.nrc.nl/nieuws/2019/04/11/voedings-en-alcohollobby-fnuiken-preventieakkoord-a3956680>.

[vii] VVD, D66, CDA & ChristenUnie, ‘Omzien naar elkaar’ supra note 2, p. 33. Translation by author.

[viii] Raad voor Volksgezondheid en Samenleving, ‘Een eerlijke kans op gezond leven’ supra note 1,  p. 10. See also, Sheila Sitalsing, ‘We mogen niet toestaan dat arme mensen zes jaar korter leven dan rijke mensen’ (De Volkskrant, 7 april 2021) <https://www.volkskrant.nl/columns-opinie/we-mogen-niet-toestaan-dat-arme-mensen-zes-jaar-korter-leven-dan-rijke-mensen~b119b646/>.

[ix] S.K. Djojosoeparto, et. al., ‘Stakeholder views on the potential impact of a sugar-sweetened beverages tax on the budgets, dietary intake, and health of lower and higher socio-economic groups in the Netherlands’ 78 Archives of Public Health. See also, WHO, ‘Health Taxes: a Primer’ supra note 3.

[x] For an op-ed on free choice and unhealthy diets, see Aylin Bilic, ‘Je volvreten doe je niet uit eigen vrije keuze’ (NRC, 7 januari 2021) <https://www.nrc.nl/nieuws/2021/01/07/je-volvreten-doe-je-niet-uit-eigen-vrije-keuze-a4026473>.

[xi] International Covenant on Economic, Social and Cultural Rights (Adopted 16 December 1966, entered into force 3 January 1967) 993 UNTS 3 (ICESCR), article 12.

[xii] CESCR, ‘General Comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)’, para 3.

[xiii] CESCR, ‘General Comment No. 14: The right to the highest attainable standard of health’ (2000), para. 4, K. Ó. Cathaoir, et. al., ‘Global health law and obesity: towards a complementary approach of public health and human rights law’ in Research Handbook on Global Health, edited G. L. Burci and B. Toebes, p. 441 and B. Toebes ‘Socioeconomic Health Inequalities in Europe: the role of law and human rights’ in The Oxford Handbook of Comparative Health Law, edited D. Orentlicher and T.K. Hervey, p. 6.

[xiv] CESCR, GC 14 supra note, para. 33 and Ó. Cathaoir, ‘Global health law and obesity’ supra note 13, p. 442.

[xv] Brigit Toebes, ‘Let’s talk about the sugartax – Laten we praten over de suikertaks’ (Global Health Law Groningen Blog, 2018), https://www.rug.nl/rechten/onderzoek/expertisecentra/ghlg/blog/lets-talk-about-the-sugartax-laten-we-praten-over-de-suikertaks-05-04-2018

[xvi] VVD, D66, CDA & ChristenUnie, ‘Omzien naar elkaar’ supra note 2, p. 33. Regarding the technological problems interfering with the implementation of lowering the VAT on fruit and vegetables, see NOS, ‘Belastingdienst worstelt met verouderde systemen, en dat maakt btw-verlaging ingewikkeld’ (25 January 2022), <https://nos.nl/artikel/2414528-belastingdienst-worstelt-met-verouderde-systemen-en-dat-maakt-btw-verlaging-ingewikkeld>.

[xvii] WHO, ‘Global Strategy on Diets, Physical Activity and Health’ (WHO, 2004), point 40.1 and S.K. Djojosoeparto, ‘Stakeholder views’ supra note 8. Right to information is guaranteed in the ICCPR, International Covenant on Civil and Political Rights (Adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171, article 19.

[xviii] WHO, ‘Global Strategy on Diets’ supra note 17 and CESCR, GC 14 supra note 13, para. 37.