ChangeLabSolutions_MiM Sugary Drink Memo_6.20.19.docx

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TO: Jessica del Rosario, Kim Etingoff, and Heidi Stucker FROM: Nadia Rojas, MPH, Greg Miao, JD, and Zach Hale, JD DATE: June 19, 2019 RE: Sugary Drink Reduction Policy Recommendations for Massachusetts

Disclaimer: The information provided in this discussion is for informational purposes only and does not constitute legal advice. ChangeLab Solutions does not enter into attorney-client relationships. ChangeLab Solutions is a non-partisan, nonprofit organization that educates and informs the public through objective, non-partisan analysis, study, and/or research. The primary purpose of this discussion is to address legal and/or policy options to improve public health. There is no intent to reflect a view on specific legislation.

This memorandum provides an overview of the health concerns that arise with sugary drink consumption and marketing in Massachusetts and strategies that can be implemented to reduce sugary drink consumption. Targeted marketing of beverages to people of color and populations that are low-income will also be discussed. This memo examines the specific channels through which individuals are exposed to sugary drink marketing, analyzes policy options and provides recommendations to address sugary drink marketing that occurs through each of these channels. These policy options are nationally recognized evidence-based options, tailored to the state of Massachusetts and can be used by coordinators in the state Massachusetts to advocate in their communities.

Health outcomes in Massachusetts Diet-related diseases and conditions are public health concerns in the United States, given that they can affect quality of life and shorten lifespan.[endnoteRef:2], [endnoteRef:3] Obesity is one of the major risk-factors for diet-related diseases.[endnoteRef:4], [endnoteRef:5], [endnoteRef:6] In Massachusetts, data suggests that although rates of obesity are lower than the U.S. as a whole, they are still increasing.[endnoteRef:7] The obesity rate of the adult population is currently at 26%, an increase from 20% since 2007.[endnoteRef:8] Black and Latinx adult populations in Massachusetts have higher rates of obesity than their white counterparts. Black and Latinx adults have a rate of obesity at 35.1% and 31.0%, respectively, while white adults have a significantly lower rate at 24.0%.[endnoteRef:9] Diet-related diseases due to obesity are expensive for Massachusetts. A study in 2012 found that over 3.5 billion of medical expenses in Massachusetts are due to adult obesity.[endnoteRef:10] [2: Reilly JJ, Kelly J. Long-term impact of overweight and obesity in childhood and adolescence on morbidity and premature mortality in adulthood: systematic review. Int J Obesity. 2011;35(7):891-898. doi: 10.1038/ijo.2010.222. ] [3: Centers for Disease Control and Prevention. Childhood Obesity Causes & Consequences. https://www.cdc.gov/obesity/childhood/causes.html. Accessed November 1, 2018.] [4: Franks PW, Hanson RL, Knowler WC, Sievers ML, Bennett PH, Looker HC. Childhood obesity, other cardiovascular risk factors, and premature death. N Engl J Med. 2010;362(6):485-493. ] [5: Baker JL, Olsen LW, Sorensen TI. Childhood body-mass index and the risk of coronary heart disease in adulthood. N Engl J Med. 2007;357(23):2329-2337. ] [6: Tirosh A, Shai I, Afek A, et al. Adolescent BMI trajectory and risk of diabetes versus coronary disease. N Engl J Med. 2011;364(14):1315-1325.] [7: The State of Obesity. The State of Obesity in Massachusetts. https://www.stateofobesity.org/states/ma/. Accessed June 14, 2019. ] [8: The State of Obesity. The State of Obesity in Massachusetts. https://www.stateofobesity.org/states/ma/. Accessed June 14, 2019.] [9: The State of Obesity. The State of Obesity in Massachusetts. https://www.stateofobesity.org/states/ma/. Accessed June 14, 2019.] [10: Trogdon JG, Finkelstein EA, Feagan CW, Cohen JW. State- and payer-specific estimates of annual medical expenditures attributable to obesity. Obesity (Silver Spring). 2012;20(1):214-220. ]

As mentioned previously, obesity is a risk factor for diet-related diseases. Currently, 9.5% of the population in Massachusetts has diabetes and 28.6% have hypertension.[endnoteRef:11] Diet-related disease are also among the leading causes of death. Cancer, heart disease, respiratory disease, stroke, diabetes, and kidney failure are all found in the top 10 leading causes of death in Massachusetts.[endnoteRef:12] [11: The State of Obesity. The State of Obesity in Massachusetts. https://www.stateofobesity.org/states/ma/. Accessed June 14, 2019.] [12: Massachusetts Department of Public Health. Massachusetts State Health Assessment, October 2017. Boston, MA; 2017. https://www.mass.gov/files/documents/2017/11/03/2017%20MA%20SHA%20final%20compressed.pdf]

Data of hospitalizations rates due to diet-related diseases in Massachusetts suggests health disparities among different populations. Age-adjusted hospitalizations rates due to hypertension among Latinx and Black adults are 100 and 201 per 100,0000 people, respectively, compared to a significantly lower amount at 31 per 100,000 people for white adults. Hospitalization rates due to diabetes show similar disparities. Hospitalization rates due to diabetes are 242 and 353 per 100,000 for Latinx and Black adults, respectively compared to 116 for white adults.[endnoteRef:13] [13: Massachusetts Department of Public Health. Massachusetts State Health Assessment, October 2017. Boston, MA; 2017. https://www.mass.gov/files/documents/2017/11/03/2017%20MA%20SHA%20final%20compressed.pdf]

Sugary drink consumption Sugary drinks (also called sugar-sweetened beverages, or SSBs) are generally defined all nonalcoholic beverages with any added caloric sweetener, including those intended to be mixed into an alcoholic drink.[endnoteRef:14] Examples of these beverages include non-diet soda, fruit ades, sport drinks, energy drinks, sweetened waters and sweetened coffee and tea beverages.[endnoteRef:15] However, some sugary drink policies include exemptions for beverages that have added caloric sweeteners, provided there is some perceived health benefit. Such beverages can include 100% fruit and vegetable juices,[endnoteRef:16] milk products that are more than 50% milk by volume, milk substitutes, and medically necessary beverages. [14: ChangeLab Solutions, Healthy Food America. A Legal and Practical Guide for Designing Sugary Drink Taxes. 2nd ed. 2018. https://d3n8a8pro7vhmx.cloudfront.net/heatlhyfoodamerica/pages/428/attachments/original/1548261777/Sugary_Drinks-TAX-GUIDE_FINAL_20190114.pdf?1548261777] [15: US Department of Health and Human Services and US Department of Agriculture. Dietary Guidelines for Americans 2015-2020. 8th ed. Washington, DC. 2015. https://health.gov/dietaryguidelines/2015/guidelines/appendix-6/#s. ] [16: Healthy Food America. Does 100% Fruit Juice Pose a Health Risk to Kids Akin to Added-Sugar Drinks? 2017. https://d3n8a8pro7vhmx.cloudfront.net/heatlhyfoodamerica/pages/287/attachments/original/1490216031/HealthImpacts100juice_VS_addedsugar_HFAMarch2017.pdf?1490216031. Accessed June 14, 2019.]

Drinking too many sugary drinks can make it difficult for people to maintain a healthy weight. The sugar found in sugary drinks is different from other forms of added dietary sugar. The added sugar that comes in sugary drinks comes in liquid form and is processed by the body differently than other forms of sugar.[endnoteRef:17] There is no fiber in sugary drinks, and fiber helps the body feel full. Another thing that sets sugary drinks apart is the frequency of their consumption. Almost two-thirds of U.S. children aged 2-19 drink at least one sugary drink a day,[endnoteRef:18] and over half of U.S. adults drink at least one sugary drink a day.[endnoteRef:19] Habitual consumption of sugary drinks has been linked to significant health risks for both adults and children. For adults, consumption has been linked to congestive heart disease,[endnoteRef:20] increased risk of hypertension,[endnoteRef:21] and increased risk of type 2 diabetes.[endnoteRef:22] In children, consumption of sugary drinks has been linked to an increase in cardiovascular disease,[endnoteRef:23] type 2 diabetes,[endnoteRef:24] and weight gain.[endnoteRef:25] Excess consumption of sugar, particularly in sugary drinks, is a national concern addressed most recently by the American Academy of Pediatrics, urging changemakers to pass policies that discourage consumption of added sugars.[endnoteRef:26] [17: University of California, San Francisco. Sugar Sweetened Beverages. Sugar Science Web site. http://sugarscience.ucsf.edu/sugar-sweetened-beverages/#.Wv8tSMjasWo. Accessed May 18, 2018.] [18: Rosinger A, Herrick K, Gahche J, Park S. Sugar-sweetened beverage consumption among US youth, 2011–2014. NCHS Data Brief. 2017;(271):1-8.] [19: Rosinger A, Herrick K, Gahche J, Park S. Sugar-sweetened beverage consumption among US youth, 2011–2014. NCHS Data Brief. 2017;(271):1-8.] [20: DeChristopher, LR, Uribarri J, Tucker KL. Intake of high fructose corn syrup sweetened soft drinks, fruit drinks and apple juice is associated with prevalent coronary heart disease, in U.S. adults, ages 45-59 y. BMC Nutr. 2017;3:51. doi: 10.1186/s40795-017-0168-9. ] [21: Jayalath VH, de Souza RJ, Ha V, et al. Sugar-sweetened beverage consumption and incident hypertension: a systematic review and meta-analysis of prospective cohorts. Am J Clin Nutr. 2015;103(4)914-21. doi: 10.3945/ajcn.115.107243.] [22: Imamura F, O’Connor L, Ye Z, et al. Consumption of sugar sweetened beverages, artificially sweetened beverages, and fruit juice and incidence of type 2 diabetes: systematic review, meta-analysis, and estimation of population attributable fraction. BMJ. 2015;351:h3576. doi: https://doi.org/10.1136/bmj.h3576.] [23: Vos MB, Kaar JL, Welsh JA, et al. Added sugars and cardiovascular disease risk in children: a scientific statement from the American Heart Association. Circulation. 2017;135(19):e1017-e1034. doi: 10.1161/CIR.0000000000000439.] [24: Greenwood DC, Threapleton DE, Evans CE, et al. Association between sugar-sweetened and artificially sweetened soft drinks and type 2 diabetes: systematic review and dose–response meta-analysis of prospective studies. Br J Nutr. 2014;112(5):725-734. doi: 10.1017/S0007114514001329.] [25: Malik VS, Pan A, Willett WC, Hu FB. Sugar-sweetened beverages and weight gain in children and adults: a systematic review and meta-analysis. Am J Clin Nutr. 2013 98(4):1084-1102. doi: 10.3945/ajcn.113.058362.] [26: Muth ND, Dietz WH, Magge SN, Johnson, RK. Public polices to reduce sugary drinks consumption in children and adolescents. Pediatrics. 2019;143(4):e20190282. doi: 10.1542/peds.2019-0282.]

Health Disparities in Sugary Drink Consumption There are also disparities in consumption of sugary drinks by different populations. For example, Latinx and Black children consume more sugary drinks than white children and are more than twice as likely as white children to be obese. In addition, children in low-income families of all races are twice as likely to consume sugary drinks compared to children in high-income families.[endnoteRef:27] Adult Black and Latinx children see similar trends. Latinx and Black adults consume more calories per day from sugary drinks than their white and Asian peers.[endnoteRef:28] Latinx and Black adults are more likely to experience diabetes than their white non-Hispanic peers, and the death rate for diabetes and heart disease for Black adults is higher than for white adults.[endnoteRef:29] Data on sugary drink consumption of high school students by ethnicity in Massachusetts shows that 69% of black and 71.4% of Hispanic high school students had 1 or more sugary beverages the previous day compared to 58% of white students.[endnoteRef:30] [27: Han E, Powell LM. Consumption patterns of sugar-sweetened beverages in the United States. J Acad Nutr Diet. 2013;113(1):43-53. doi: 10.1016/j.jand.2012.09.016.] [28: Rosinger A, Herrick K, Gahche J, Park S. Sugar-sweetened Beverage Consumption Among U.S. Adults, 2011-2014. Hyattsville, MD: National Center for Health Statistics. 2017. https://www.cdc.gov/nchs/data/databriefs/db270.pdf. NCHS Data Brief No. 270] [29: Rudd Center for Food Policy & Obesity, AACORN, Salud America!. Rudd Report: Food Advertising Targeted to Hispanic and Black Youth: Contributing to Health Disparities. 2015. http://www.uconnruddcenter.org/files/Pdfs/272-7%20%20Rudd_Targeted%20Marketing%20Report_Release_081115%5B1%5D.pdf. ] [30: Massachusetts Department of Elementary & Secondary Education. Health & Risk Behaviors of Massachusetts Youth, 2015 Report. 2015. http://www.doe.mass.edu/sfs/yrbs/2015report.pdf. ]

These disparate consumption patterns and health outcomes disparities are the result of several factors, including the targeted marketing of sugary drinks to these populations.

Sugary Drink Marketing Practices and Their Effects Marketers use all of the “four Ps” - product, price, place and promotion - to target communities with beverage marketing, specifically people of color, people with low-income, and youth. This marketing is pervasive, taking several forms including billboards to television to social media, government procurement and vending contracts with advertising clauses, government property and sponsorship contracts, in store and restaurant promotions, and beverage contracts in childcare settings and schools.[endnoteRef:31] Sugary drink companies devote large amounts of money to promoting their products which dramatically outpaces spending on advertising of other, healthier beverages. [31: Changelab Solutions. EXECUTIVE SUMMARY WHITE PAPER ON STRATEGIES TO REDUCE UNHEALTHY FOOD AND BEVERAGE MARKETING TO YOUNG CHILDREN Background and Rationale. (2015).

ChangeLab Solutions. Executive Summary: White Paper on Strategies to Reduce Unhealthy Food and Beverage Marketing to Young Children. 2015. https://www.changelabsolutions.org/sites/default/files/Marketing_Matters_Executive-Summary_FINAL_20150527-WEB.pdf ]

For every $1 spent on advertising water or 100% juice, $4 were spent on advertising sugary drinks. In 2014, sugary drink companies spent $866 million on product and brand promotion via television, websites, third-party ads (that is, ads in which a website or publisher presents content for users and includes advertising delivered by another entity), and social media to market their products.[endnoteRef:32] [32: Harris J, Schwartz M, LoDolce M, et al. Sugary Drink FACTS 2014: Some Progress But Much Room for Improvement in Marketing to Youth. Rudd Center for Food Policy & Obesity. Published November 2014. http://www.rwjf.org/content/dam/farm/reports/reports/2014/rwjf416417. Accessed May 29, 2018.]

Marketing Influence on children Even when they’re not hungry, children are susceptible to unhealthy food and beverage marketing and often prefer products that are marketed to them through targeted ads.[endnoteRef:33] When young children are exposed to food and beverage advertising, they are more likely to choose the advertised food and beverage than unexposed peers and are more likely to ask their caregiver to purchase the food advertised to them.[endnoteRef:34] Preschoolers have shown preference for advertised products after just 30 seconds of exposure.[endnoteRef:35] Young children generally lack the cognitive skills and life experience to understand the difference between unbiased sources of information and promotional pieces for products.[endnoteRef:36] Even teenagers are susceptible to emotive elements in advertisements that speak to common concerns like their looks, identity, and sexuality.[endnoteRef:37] [33: Emond JA, Lansigan RK, Ramanujam A, Gilbert-Diamond D. Randomized exposure to food advertisements and eating in the absence of hunger among preschoolers. Pediatrics. 2016; 138(6):138-148. doi: 10.1542/peds.2016-2361. ] [34: Coon KA, Tucker KL. Television and children’s consumption patterns. Minerva pediatrica. 2002;54(5):423-436. https://www.minervamedica.it/en/journals/minerva-pediatrica/article.php?cod=R15Y2002N05A0423&acquista=1. ] [35: Borzekowski DL, Robinson TN. The 30-second effect: an experiment revealing the impact of television commercials on food preferences of preschoolers. J Am Diet Assoc. 2001;101(1):42-46. doi: 10.1016/S0002-8223(01)00012-8. ] [36: Story M, French S. Food advertising and marketing directed at children and adolescents in the US. Int J Behav Nutr Phys Activity. 2004;1(3). doi: 10.1186/1479-5868-1-3. (finding “prior to age 7 or 8 years, children tend to view advertising as fun, entertaining, and unbiased information. An understanding of advertisement intent usually develops by the time most children are 7-8 years old.” Thus, “[b]ecause of their level of cognitive development, children under 8 years of age are viewed by many child development researchers as a population vulnerable to misleading advertising.”)] [37: Story M, French S. Food advertising and marketing directed at children and adolescents in the US. Int J Behav Nutr Phys Activity. 2004;1(3). doi: 10.1186/1479-5868-1-3.]

Targeted marketing towards youth of color Marketing strategies promoting unhealthy food and beverages disproportionately target youth from Black, Latinx, and other communities of color compared to their white counterparts.[endnoteRef:38] Food-related advertising spending on Black-targeted TV increased by more than 50% from 2013 to 2017 ($217 to $333 million). This corresponds to an increase in ads seen by Black youth. In 2017, Black youth viewed 86% more food-related ads than their white peers, a large increase from 70% in 2013.[endnoteRef:39] In addition, Latinx youth are exposed to food advertising on Spanish-language TV in addition to advertising on English-language TV. A recent study by the Rudd Center found that food companies spent $787 million to advertise on Spanish-language TV and $333 million to advertise on Black-targeted TV in 2017.[endnoteRef:40] [38: Rudd Center for Food Policy & Obesity, Council on Black Health, Salud America!. Rudd Report: Increasing Disparities in Unhealthy Food Advertising Targeted to Hispanic and Black Youth. Rudd Center for Food Policy & Obesity; 2019. http://uconnruddcenter.org/files/Pdfs/TargetedMarketingReport2019.pdf.] [39: Rudd Center for Food Policy & Obesity, Council on Black Health, Salud America!. Rudd Report: Increasing Disparities in Unhealthy Food Advertising Targeted to Hispanic and Black Youth. Rudd Center for Food Policy & Obesity; 2019. http://uconnruddcenter.org/files/Pdfs/TargetedMarketingReport2019.pdf.] [40: Rudd Center for Food Policy & Obesity, Council on Black Health, Salud America!. Rudd Report: Increasing Disparities in Unhealthy Food Advertising Targeted to Hispanic and Black Youth. Rudd Center for Food Policy & Obesity; 2019. http://uconnruddcenter.org/files/Pdfs/TargetedMarketingReport2019.pdf.]

Evidence-Based Local Policy Options The local policy descriptions provided are purposefully broad, to provide an overview of each option, organized roughly by level of feasibility. While there are a number of statewide legislative initiatives currently being considered,[endnoteRef:41], [endnoteRef:42] local governments may wish to pursue the following policies as a gap measures or to establish more stringent regulations. There are legal considerations for each policy at the local and state level that are not provided in this memo. Before starting any directed work on any of these policy areas, a consultation with an attorney is recommended. [41: See H. 1947, 191st Gen. Ct., (Mass. 2019) and S. 1291, 191st Gen. Ct., (Mass. 2019) (prohibiting the marketing of sugary drinks in schools, requiring labels on certain sugary drink advertisements, limiting beverage options for chain restaurant children’s meals, establishing a Special Commission on Access to Drinking Water in Public Places).] [42: See H. 2529, 191st Gen. Ct., (Mass. 2019) and S. 1709, 191st Gen. Ct., (Mass. 2019) (imposing an excise tax on sugary drink distributors, establishing a Children’s Health Promotion fund with tax revenue).]

To sort the strategies, we considered their implementation track record. Strategies that appear earlier in the list have already been implemented by one or more communities nationwide. Policies that have been implemented in a few communities or have not yet been implemented but are still legally feasible appear later in the memo.

It’s unlikely that a single policy can substantially reduce sugary drink consumption or drastically improve health. Using multiple strategies, such as those listed in this memo, can help communities create significant and long-lasting improvements in health for all.

1. Build on federal standards to expand sugary drink restrictions in youth-oriented settings To address the types of products being offered, Massachusetts state policy makers can institute nutrition standards for meals and snacks. The federal food programs in which most public schools and many child care settings participate—such as the National School Lunch Program (NLSP) and the Child and Adult Care Food Program— have nutrition standards that are set by federal law. Those standards can be formally adopted or expanded, to ensure that only healthy food is provided to children. There are four primary ways that state policy makers can use federal standards to affect the types of food and beverage products offered to students and, therefore, limit children’s exposure to those products.

The following are strategies that policy makers can use to improve on federal standards:

· Adopt federal standards locally to protect them from rollback. Federal regulations may change with new administrations. For example, while the 2016 NSLP standards allowed only fat-free flavored milk, the USDA issued an interim final rule in November 2017 that allows schools to provide low-fat (1%) flavored milk.[endnoteRef:43] School districts that had adopted the 2016 NLSP standards as district policy could then continue to maintain stronger sugary drink standards for their student population, even as the federal regulations loosened. [43: Interim Final Rule: Child Nutrition Program Flexibilities for Milk, Whole Grains, and Sodium Requirements. US Department of Agriculture Food and Nutrition Service Web site Published January 16, 2018. www.fns.usda.gov/school-meals/fr-113017. Accessed February 27, 2018]

· Go beyond minimum requirements. Federal policies set the floor (ie, minimum requirements) for beverage standards. Massachusetts can use its authority to regulate early child care settings and schools to restrict the availability of sugary drinks beyond what is required under federal food policy.

· Close gaps. Federal standards are not comprehensive. For example, federal standards for school wellness policies do not require schools to implement nutrition standards for events outside of the school day or at infrequent school-sponsored fundraisers. To address such gaps, a school district may decide to apply nutrition standards to school events that occur outside of the school day, like football games or dances on campus.

· Improve coverage to include more children and youths. Federal food programs for child care and educational settings are voluntary, though rates of participation are generally high. However, many qualifying young people are still left out. For example, some child care settings, like informal caretakers or unlicensed settings, may not participate in a food program. Changemakers can consider policy strategies to address sugary drinks at sites not covered by federal law. Changemakers can further improve nutrition for particularly vulnerable populations by pairing healthier beverage standards with expanded food access. For example, healthier nutrition standards could be paired with adoption of the Community Eligibility Provision (CEP) of the NLSP, which allows the nation’s highest poverty schools and districts to serve breakfast and lunch at no cost to all students without an application,[endnoteRef:44] to increase youth access to healthy foods in high poverty school districts. [44: Community Eligibility Provision. Massachusetts Department of Elementary & Secondary Education, Office for Food and Nutrition Programs Web site. http://www.doe.mass.edu/cnp/nprograms/cep/. Updated April 30, 2019. ]

Strategy in action Strategies that build on federal sugary drink standards have been implemented at both state and local levels, particularly for school settings. In April 2015, the San Francisco Unified School District’s (SFUSD) Board of Education adopted a wellness policy that goes beyond federal requirements.[endnoteRef:45] SFUSD’s school wellness policy prohibits the sale of sweetened beverages at all times on any district property.[endnoteRef:46] Noncompliant beverages cannot be marketed, and juices must be 100% juice with no added sweeteners.[endnoteRef:47] In 2017, the Kansas State Board of Education produced guidelines for wellness policies in school districts that include restrictions on sugary drink sales on school grounds.[endnoteRef:48], [endnoteRef:49]The guidelines are structured in three levels so that districts have flexibility in crafting nutrition policies. The basic level simply meets USDA requirements, and the other two levels exceed them.[endnoteRef:50] [45: School Wellness Policy. San Francisco Unified School District Web site. www.sfusd.edu/en/nutrition-school-meals/policies-and-standards/official-wellness-policy.html. Accessed May 29, 2018] [46: School Wellness Policy. San Francisco Unified School District Web site. www.sfusd.edu/en/nutrition-school-meals/policies-and-standards/official-wellness-policy.html. Accessed May 29, 2018.] [47: Happy Hydration - Beverage Guidelines. San Francisco Unified School District Web Site. www.sfusd.edu/en/assets/sfusd-staff/nutrition-and-meals/files/Happy%20Hypdration.pdf. Accessed May 29, 2018.] [48: Kansas School Wellness Policy Model Guidelines. Kansas State Department of Education. Approved May 2017. www.kn-eat.org/SNP/SNP_Docs/SNP_Guidance/Wellness_Policies/Wellness_Policy_Guidelines_Booklet_Final_2017.pdf. Accessed May 29, 2018. ] [49: See also Kansas State Department of Education. School wellness: action! [2018 workshop]. www.kn-eat.org/SNP/SNP_Docs/SNP_Guidance/Wellness_Policies/2018_Wellness_Workshop_Presentation.pdf. Updated 2018. Accessed May 29, 2018.] [50: Under the “advanced” level guidelines, sugary drinks may not be sold until after school for elementary students and one hour after the lunch period for high school students. Under the “exemplary” level guidelines, sugary drinks may not be sold at any time for elementary students and not until after school for high school students. The “advanced” and “exemplary” level guidelines also explicitly allow the sale of electrolyte replacement beverages (with less than 48 grams of sugar per 20-ounce unit) in vending machines located near high school athletic training centers.]

Health Equity in Focus Around 95% of U.S. schools participate in the National School Lunch Program (NSLP),[endnoteRef:51] a federal program that provides free or low-cost meals to millions of eligible students, including foster children, low-income children, and homeless children.[endnoteRef:52] NSLP also provides reimbursement for nutritious snacks to eligible after-school sites such as schools, recreation centers, YMCAs, and Boys and Girls Clubs that offer educational and enrichment activities to children up to age 18. Participating sites must comply with nutrition standards for milk and juice. Certain sugary drinks are not allowed to be sold or served in public schools that participate in NSLP.[endnoteRef:53] Using the strategies mentioned above to improve on federal standards can have an impact on low-income students that depend on these programs for meals. [51: Food Research & Action Center. FACTS National School Lunch Program. 2016. http://frac.org/wp-content/uploads/cnnslp.pdf. Published November 2016. Accessed May 25, 2018.] [52: Food Research & Action Center. FACTS National School Lunch Program. 2016. http://frac.org/wp-content/uploads/cnnslp.pdf. Published November 2016. Accessed May 25, 2018.] [53: See 7 C.F.R. § 210.11(m) (2017) (stating, for example, “[a]llowable beverages for elementary school-aged students are limited to...”).]

2. Restrict Marketing of Sugary Drinks in Schools and Childcare Centers Schools and child care settings are locations where Massachusetts can address promotion, or advertisements of unhealthy foods. All school districts that participate in the National School Lunch Program or the School Breakfast Program must also implement a wellness policy. These policies apply to all schools, including pre-k programs run by the district. However, additional legal and policy consideration must be considered with strategies outside of school districts. It would be best to consult with a local municipal or school district attorney to explore the options for Massachusetts.

The USDA requires wellness policies to include minimum requirements for food and beverage products marketed on campus. If a product does not meet the nutrition standards set by the USDA for “competitive foods,” which are individual food and beverage products sold on campus outside of the National School Lunch Program, that product cannot be marketed on the campus during the day. School districts can go beyond the USDA standards, to further restrict marketing.[endnoteRef:54] School districts may want to work on the following strategies to update their wellness policies to expand the marketing restrictions imposed by federal law: [54: See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988) (recognizing that the “special characteristics of the school environment” justify giving school districts broad authority to control speech consistent with their “basic educational mission” [internal quotation marks omitted]); DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999), cert. denied 529 U.S. 1067 (2000) (holding that a school district did not violate the First Amendment by restricting advertising on a baseball field fence because the fence was a nonpublic forum and the restriction was content-based and legitimately addressed the district’s concerns about disruption and potential controversy).]

· Aligning marketing standards with state and local nutrition standards.

· Limiting brand marketing on campus.

· Extending marketing restrictions beyond the school day to off-campus events or other school-related activities (e.g., fundraisers).

· Banning advertising of all foods and beverages on campus.

· Banning all marketing on campus.

Strategy in Action Many school districts have integrated the current federal marketing restrictions into their wellness policies, which means that these restrictions would stay in effect even if the federal regulations were to change. In 2017, the Mission Consolidated Independent School District – located in Mission, Texas – adopted a wellness policy that limits marketing of food and beverages to those that meet the Smart Snacks in School nutrition standards, essentially protecting this restriction from any potential rollback of federal marketing requirements.[endnoteRef:55] [55: Carillo, M. Mission CISD wellness policy plan. Presented at: Board of Trustees Meeting June 21, 2017. https://1.cdn.edl.io/hZAFg54dKQUBCzthCuWHbPuHChZJu6ltqBFB9j5EqhnH8BtN.pdf. Accessed December 15, 2017]

States also influence school policy. In 2017, the California legislature enacted a law that prohibits schools participating in the National School Lunch Program or School Breakfast Program from advertising foods or beverages that do not meet specified nutritional standards during the school day. Advertising at infrequent school functions or fundraisers is exempted from the prohibition.[endnoteRef:56] [56: Cal. Educ. Code § 49431.9 (West 2018).]

As mentioned previously, marketing strategies promoting unhealthy food and beverages disproportionately target youth from Black, Latinx, and other communities of color compared to their white counterparts.[endnoteRef:57] Restricting marketing of sugary drinks in schools and childcare centers will reduce exposure of unhealthy food ads and have a greater benefit towards youth of color, who are overexposed to junk food marketing. [57: Rudd Center for Food Policy & Obesity, Council on Black Health, Salud America!. Rudd Report: Increasing Disparities in Unhealthy Food Advertising Targeted to Hispanic and Black Youth. Rudd Center for Food Policy & Obesity; 2019. http://uconnruddcenter.org/files/Pdfs/TargetedMarketingReport2019.pdf.]

3. Eliminate Sugary Drinks from Kids Meals Sugary drinks are a major contributor of excess calories in the diets of kids ages 2–19, representing 7% of their daily caloric intake.[endnoteRef:58] Many fast food chains and restaurants have already voluntarily adopted policies limiting sugary drinks in meals served to kids. For example, McDonald’s has added bottled water as a beverage choice for kids meals, with default options of low-fat milk and juice.[endnoteRef:59],[endnoteRef:60] Other chains like Applebee’s, Dairy Queen, Jack in the Box, Burger King, IHOP, Panera, and Wendy’s have dropped soda as the default option in kids meals.[endnoteRef:61] [58: Rosinger A, Herrick K, Gahche J, Park S. Sugar-sweetened Beverage Consumption Among U.S. Adults, 2011-2014. Hyattsville, MD: National Center for Health Statistics. 2017. https://www.cdc.gov/nchs/data/databriefs/db270.pdf. NCHS Data Brief No. 270.] [59: Dewey C. Can a Happy Meal ever really be ‘healthy’? McDonald’s is trying its best. Washington Post. February 15, 2018. www.washingtonpost.com/news/wonk/wp/2018/02/15/can-a-happy-meal-ever-really-be-healthy-mcdonalds-is-trying-its-best/?utm_term=.61878554bad5. Accessed May 29, 2018.] [60: Happy Meal. McDonald’s Web site. www.mcdonalds.com/us/en-us/full-menu/happy-meal.html. Accessed June 15, 2018. ] [61: Harris J, Hyary M, Seymour N, Yoon-Young C. Are Fast-Food Restaurants Keeping Their Promises to Offer Healthier Kids’ Meals? UCONN Rudd Center for Food Policy & Obesity. Published August 2017. www.uconnruddcenter.org/files/Pdfs/272-9%20_%20Rudd_Healthier%20Kids%20Meals%20Report_Final%20Round_Web-150dpi_080117.pdf. Accessed May 29, 2018.]

However, these chains’ voluntary pledges to provide healthy options have had mixed results in implementation. In 2016, these chains had changed their online kids menu offerings in accordance with these pledges. Yet at some restaurant locations, soda still appeared on menu boards for kids and was offered as the default beverage option when kids meals were ordered.[endnoteRef:62] [62: Harris J, Hyary M, Seymour N, Yoon-Young C. Rudd Report: Are Fast-Food Restaurants Keeping Their Promises to Offer Healthier Kids’ Meals? Rudd Center for Food Policy & Obesity. Published August 2017. www.uconnruddcenter.org/files/Pdfs/272-9%20_%20Rudd_Healthier%20Kids%20Meals%20Report_Final%20Round_Web-150dpi_080117.pdf. Accessed May 29, 2018.]

Massachusetts localities can also pass laws that restrict the types of drinks that can be offered as part of kids meals. Such laws make healthier options the norm in a community while still providing families with the option to make their own selections. There is currently proposed legislation at the state level that would prohibit sugary drinks as the default beverage in children’s meals.[endnoteRef:63] Even if this law is enacted, local policies establishing healthy kids meals can go beyond default options and require any sugary drinks to be sold separately. These laws can also establish minimum nutritional requirements for all foods served in kids meals. [63: H. 1947, 191st Gen. Ct., (Mass. 2019); S. 1291, 191st Gen. Ct., (Mass. 2019).]

In 2017, Lafayette, Colorado,[endnoteRef:64] and in 2018, Baltimore, Maryland,[endnoteRef:65] became the first US cities outside of California to adopt a healthy default beverage ordinance. The ordinances adopted by these cities allow a restaurant to sell an alternative or substitute beverage with a kids meal only if it is specifically requested by the purchaser. [64: Lafayette, Colo., Municipal Code §§ 55-175 to 55-177 (2018).] [65: Baltimore, Md., Health Code of Baltimore City, § 6-509 (2018) (enacted by Ordinance 18-126 on Apr. 23, 2018).]

Underserved communities often have limited access to high-quality foods.[endnoteRef:66] Restaurants and fast food outlets may fill this gap for families, but they generally provide meals that are low in nutritional value. Eliminating sugary drinks from kids meals can be accomplished through voluntary initiatives or policy that requires that the default beverage included in a kids meal be a healthier option, such as sparkling water or milk with no added sweeteners. Under such a policy, a sugary drink could be sold with a kids meal, but only if specifically requested by the purchaser. Changes to these policies can have a positive impact on families who rely on the affordability and accessibility of fast food meals. [66: Sealy YM. Parents’ perceptions of food availability: implications for childhood obesity. Soc Work Health Care. 2010;49(6):565-580. doi: 10.1080/00981381003635353.]

4. Limit sugary drinks through government procurement policies Government entities, for their part, can control what types of food and drinks are served on their property through their purchasing power – that is, the power to buy and sell goods and services. Government entities have a wide influence, especially among underserved populations. For example, government agencies provide food to child care, schools, people in jails, juvenile facilities, public hospitals, and senior programs. They also provide food to their employees and the public through retail outlets, cafeterias, and concession stands on their property.

By adopting purchasing policies that prioritize healthy, ethical, and sustainable food – often called healthy procurement policies –the government can provide healthier beverages to employees and community members, thereby making a positive impact on community health.

Procurement policies can take different forms, such as policies that focus on various specific venues. For example, a healthy vending policy may establish nutrition standards or other guidelines for products sold in vending machines specifically. This narrow focus contrasts with a broader approach that covers, say, all beverages purchased with public funds.

Many government agencies have implemented procurement policies to reduce sugary drink consumption. In 2011, Thomas Menino, mayor of Boston, Massachusetts, signed an executive order that transitioned the city to healthier beverage standards.[endnoteRef:67] The order required all beverages sold in vending machines, city-managed programs, contracted services, and food or beverage concessions in or around city-owned buildings to follow the Boston Healthy Options Beverage Standards. A study conducted in 2013 found that this policy had reduced the availability of high-sugar sodas on city property by almost 30%, while overall beverage prices did not increase.[endnoteRef:68] Other jurisdictions have adopted more comprehensive procurement policies. In 2016, San Francisco, California, formally adopted the Good Food Purchasing Program, a holistic food procurement policy that prioritizes local economies, fair labor practices, environmental stewardship, and humane treatment of animals.[endnoteRef:69] [67: Boston, Mass., Exec. Order of Mayor Thomas M. Menino, An Order Relative to Healthy Beverage Options (Apr. 7, 2011) www.cityofboston.gov/news/uploads/14552_36_9_3.pdf.] [68: Cradock AL, Kenney EL, McHugh A, et al. Evaluating the impact of the healthy beverage executive order for city agencies in Boston, Massachusetts, 2011–2013. Prev Chronic Dis. 2015;12:140549. doi: 10.5888/pcd12.140549.] [69: Eberle E. San Francisco Joins the Good Food Movement. Center for Good Food Purchasing Web site. https://goodfoodpurchasing.org/san-francisco-joins-the-good-food-movement. Accessed May 21, 2018.]

Different types of procurement policies will impact community members differently. Consider the difference between an employee who is able to buy healthier lunches at a cafeteria and a person in prison who is served healthier meals. For the person who is incarcerated, government procurement policy will have a much more significant impact on their life and health because they have no option but to eat government-procured food.

Procurement policies don’t have to stop at nutrition; they can also be an opportunity to promote important factors that make communities healthier and more equitable, like strong local economies, fair labor practices, environmental stewardship, humane treatment of animals, and support for priority small businesses (eg, those owned by people of color, women, veterans, or persons with disabilities). Procurement policies that restrict access to sugary drinks can also promote healthier options, such as water or plain milk.

Cutting-edge sugary drink reduction strategies The strategies presented so far in this playbook have been implemented in at least one community or state in the United States. The strategies in this section represent some innovative options that have not been successfully implemented in any community within the sugary drink context but have had success in either the alcohol or tobacco context.

1. License sugary drink retailers In many communities, running some types of businesses requires special licensing that serves a regulatory purpose. Licenses are required for a wide range of businesses, including tobacco retailers, restaurants, and casinos. For public health and other reasons, governments have determined that these businesses should be held to specific standards of operation. Nutrition advocates are now looking at licensing as a tool that could be used to increase access to healthy food.

Licenses to sell sugary drinks could include various requirements, such as limiting the proportion of sugary drinks relative to healthy beverages that a store could stock, restricting portion sizes, or setting a minimum price. Although licensing is a new idea in the nutrition space, the tobacco control movement has long used this strategy effectively to improve public health; for example, communities have used licensing to limit the sale of tobacco to minors and to regulate the density of tobacco retailers.

Feasibility in Massachusetts In Massachusetts, local health agencies have broad authority to regulate businesses that impact public health, and this authority may include requiring retail licenses. Local health departments are permitted to enact “reasonable health regulations,” [endnoteRef:70] so long as those regulations don’t conflict with state law and have a rational relation to the health purpose the regulation is addressing.[endnoteRef:71], [endnoteRef:72] Local health agencies in Massachusetts have used this authority to require licensing for tobacco retailers.[endnoteRef:73] If a city determines that sugary drink sales are a public health issue, then licensing retailers is probably a reasonable regulation permitted under Massachusetts law. Of the cutting-edge strategies presented in this memo, retail licensing is likely the most straightforward to implement from a legal point of view. All strategies, however, should be approached in close consultation with legal counsel. [70: Mass. Gen. Laws Ann. ch. 111, § 31.] [71: Wendell v. Attorney Gen., 476 N.E.2d 585, 586 (Mass. 1985).] [72: Padden v. W. Boylston, 831 N.E.2d 927, 933 (Mass. App. Ct. 2005).] [73: See, e.g., Boston, Mass. Municipal Code §16-40.2(c)(2); Quincy, Mass. Municipal Code §8.30.080.]

In many places, residents lack access to fruits and vegetables, but can find sugary drinks and non-nutritious food all too easily in the local retail environment, particularly near schools. When these local businesses sell food and drinks near school campuses, they can help or hinder schools’ efforts to improve the food environment for students. Retail store environments, including mobile vending near schools might encourage youths to purchase unhealthy foods like sugary drinks.

Some communities have attempted to limit such vending by adopting policies that restrict or ban mobile vending near schools. However, while policies that limit mobile vending may limit unhealthy and sugary drink choices near schools, they may also have unintended consequences for people of color. For example, mobile vending policies tend to be adopted in underserved areas with a high population of Latinx children, which can lead to unintended consequences when violation of these policies call for high fines and/or criminal penalties.[endnoteRef:74] Local business owners of color, who own the majority share of grocery stores in the U.S.[endnoteRef:75] may face the same unintended consequences for violation of policies that restrict sales of sugary drinks. [74: Thrun E, Chriqui JF, Chaloupka FJ. Restricting Mobile Vendors Near Schools. Bridging the Gap Research Web site. Published March 2016. www.bridgingthegapresearch.org/_asset/zf312f/BTG_mobile_vending_brief_Mar2016.pdf.] [75: McManus M. Minority Business Ownership: Data from the 2012 Survey of Business Owners. Washington, DC: US Small Business Administration, Office of Advocacy. 2016. http://www.louisianabusinessjournal.com/files/layout/sbeinc/siteContent/editor/File/Minority-Owned-Businesses-in-the-US.pdf. Issue Brief No. 12. ]

Policy makers working to restrict sales of sugary drinks need to evaluate the full community context before moving forward. Local business owners can be engaged as partners to ensure that residents have access to healthy options and that policy efforts don’t have unintended consequences. Early research suggests that the presence of healthy retail can increase consumption of more nutritious food.[endnoteRef:76] To facilitate healthy options, communities can take a variety of approaches to collaborate with local business owners: [76: See, eg, Jordan A. Testing the effectiveness of PSAs aimed at reducing SSB consumption. Presented at: Rudd Center for Food Policy and Obesity; November 13, 2012. www.uconnruddcenter.org/resources/upload/docs/seminar/2012-fall/slides/Jordan.pdf. Accessed May 24, 2018.]

· Instituting conditional permits for food retail businesses near schools that require them to meet certain nutritional standards

· Waiving permit fees, expediting permits, or otherwise prioritizing healthy retail in the permitting process

· Issuing a disproportionate number of healthy retail permits, if the total number of permits is restricted

· Providing incentives to healthy mobile vendors, such as access to more advantageous vending locations[endnoteRef:77] [77: See, e.g., Evans WD, Christoffel KK, Necheles JW, Becker AB. Social marketing as a childhood obesity prevention strategy. Obesity. 2012;18(51): S23. doi: 10.1038/oby.2009.428. (discussing elements of an effective obesity prevention campaign).]

2. Require warning labels or signs Several types of products are required to have warning labels or signage at the point of sale or other places, alerting consumers to health risks associated with the product. For example, California requires warning labels on food and beverage containers that contain the chemical BPA.[endnoteRef:78] As another example, the federal government requires that alcoholic beverages carry warning labels stating the risk of consuming alcohol during pregnancy or while operating machinery.[endnoteRef:79] Public health researchers have found that warning labels can be effective in deterring use or overuse of harmful products.[endnoteRef:80],[endnoteRef:81] For that reason, public health advocates are increasingly interested in requiring retailers to post signs on shelves where sugary beverages are sold, to advise consumers about the health impacts of sugary drinks. [78: Cal. Health & Safety, div. 20, ch. 6.6, §§ 25249.5-25249.14 (Nov. 1986).] [79: 27 U.S.C. § 215 (2018).] [80: See, e.g., Goyal RK, Rajan SS, Essien EJ, Sansgiry SS. Effectiveness of FDA’s new over-the-counter acetaminophen warning label in improving consumer risk perception of liver damage. J Clin Pharm Ther. 2012;37(6): 681-685. doi: 10.1111/j.1365-2710.2012.01371.x ] [81: Hammond D. Health warning messages on tobacco products: a review. Tobacco Control. 2011;20(5): 327-337. doi: 10.1136/tc.2010.037630.]

Strategy in Action In 2015, San Francisco lawmakers enacted a law requiring sugary drink advertisements to include the following label: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” This law was challenged by industry groups, including the American Beverage Association, which argued that it unconstitutionally burdened advertisers’ First Amendment right to free speech. The case made its way to the Ninth Circuit where the panel struck down the law due its concern that the text size of the warning may pose an undue burden on companies’ free speech.[endnoteRef:82] However, the court took no issue with the idea of a warning requirement, or even with the specific language, leaving warnings about the health harms of soda and other sugary drinks as a viable strategy.[endnoteRef:83] [82: Gonzales R. Federal appeals court blocks San Francisco law on ad warnings for sugary drinks. National Public Radio. January 31, 2019. https://www.npr.org/2019/01/31/690541166/federal-appeals-court-blocks-san-francisco-law-on-ad-warnings-for-sugary-drinks] [83: Adler S. Bittersweet: when a loss is actually a win. TheRecorder. February 11, 2019. https://www.law.com/therecorder/2019/02/11/bittersweet-when-a-loss-is-actually-a-win/.]

In light of the recent decision in the Ninth Circuit, the legal feasibility of this strategy in Massachusetts is uncertain.