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Editor: Katharine Van Tassel
Akron Univ. School of Law

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Wednesday, February 9, 2011

Tanning Tax: Vanity Tax or Public Health Measure? An Exercise in Human Rights Protection

Frank Pasquale, one of the recent additions to our new blogging team here at the Health Law Prof Blog, raises an interesting question in an entry he posted over at Concurring Opinions:

I have previously blogged in favor of a vanity tax, so I was happy to see the health reform legislation included a 10% tax on tanning salons. But not everyone is so pleased to see it:

When an article about the fallout from the tax — which took effect [recently] — appeared on the Washington Post’s Web site …, dozens of commenters questioned the tax’s legality. The case can seem deceptively simple: Since patrons of tanning salons are almost exclusively white, the tax will be almost entirely paid by white people and, therefore, violates their constitutional right to equal protection under the law.

Randall Kennedy dismisses that claim out of hand. But I hope the angry tanners join me in endorsing a plan to address the grave injustice here: legal scrutiny of face-whitening creams. Tax tanning, tax lightening, and we may well move closer to a society that can transcend the fickle “beauty bias."

Frank's post on vanity taxes is an excellent read. But it raises the question of whether the tanning tax is appropriately described as a vanity tax or as a public health measure akin to the cigarette tax or the soda tax designed to decrease a particular, unhealthy self-regarding behavior? (By self-regarding, I mean behavior that impacts only the individual).

The tanning tax appears to be directed at tanning that can lead to skin cancer so I see this as a public health measure. Is this a distinction without a difference? Does the label change the analysis?

According to Mapping the Issues: Public Health, Law and Ethics, by Lawrence O. Gostin recently posted on SSRN it does. This short but powerful essay, published in Public Health Law and Ethics: A Reader (expanded and updated 2nd ed., 2010), explains that when public health officials pass paternalistic legislation that reaches out to regulate self-regarding behavior, such as mandating motorcycle helmets or banning trans-fats, the analysis that should be applied is one that recognizes the individual liberty, autonomy, privacy and property interests of the targeted individuals. The degree of invasion of these interests should then be balanced against the communal interest to be achieved by the public health measure. In addition, a consideration of whether the proposed public health measure is the least restrictive means should become part of the calculus. Viewed this way, often education is the optimal public health tool. Does this analysis change the way that the tanning tax should be viewed?

Maybe it does. First, it removes from the calculus the consideration of the benefits that will be gained from the use of the tax revenues. This moves the focus from a political one to a scientific one and changes the social justice inquiry from the impact on a particular group to the impact on the individual. The questions then become: What are the benefits in reduction of skin cancer as a population health matter that will be gained from passage of the measure and do these benefits substantially outweigh the incursion into the sphere of personal liberty? And, finally, is education a lesser restrictive means?

How we discuss the tanning tax takes on bigger dimensions when taken in the context of the myriad of other programs that are being developed to deal with the rising cost of health care. Currently, the United States sits at a cross roads with the choice to either proceed to promote the health and well-being of the population while promoting and protecting human rights or to enhance public health at the expense of these rights. Two separate programs being proposed to deal with the "obesity crisis" by impacting lifestyle choices in order to encourage healthy food consumption exemplify these divergent paths.

The first is the West Virginia Pilot Project (the “West Virginia Project”) and the second is the USDA’s Economic Research Service's Program. In early 2007, the federal government approved the West Virginia Project which provides health care for low-income, Medicaid beneficiaries in West Virginia. The West Virginia Project punishes those who do not join, and religiously adhere to, weight-loss or anti-smoking programs, or who otherwise fail to comply with government mandates, by denying important medical services. (Click here for a study revealing the negative impact of the West Virginia Project on access to health care as of 2009). This type of program reaches out to broadly regulate the behavior of low-income individuals that is self-regarding; in other words, conduct that impacts only the individual. Unlike the situation with nicotine and its addictive properties where health advocates argue that the choice to smoke is not voluntary, health advocates’ position with regard to high fat and sugar foods is that consumers lack the capacity to make wise and rational decisions because consumers are not well enough informed. Does this rationale support the intervention of the government to take the choice to consume high fat and sugar foods away from competent adults? If it is true and there is a capacity problem based on ignorance, isn’t the solution education?

In contrast, USDA’s Economic Research Service's proposed program targets this capacity problem by incorporating findings from decision-analysis, behavioral economics, food marketing and food psychology to provide a series of strategies for informing and influencing individual choice through education to favor a healthier diet. This type of program seeks to both promote public health while protecting human rights.

With dozens of measures in the legislative works being designed to protect the government fisc by promoting personal accountability for healthy choices, identifying those measures that are directed at public health and labeling them as such may make a great deal of difference to the way we analyze them. These labeling choices may mean the difference between enhancing public health while protecting human rights rather than enhancing public health at the expense of these rights.

- KVT

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