Guest Commentary

By Caleb Bulls, a 2011 Judge K.K. Legett Fellow at Washington Legal Foundation who is entering his third year at Texas Tech University Law School.

Through the passage of the Affordable Care Act of 2010 (colloquially known as “ObamaCare”), Congress established the Prevention and Public Health Fund “to provide for expanded and sustained national investment in prevention and public health programs to improve health and help restrain the rate of growth of . . . health care costs.”  42 U.S.C. § 300u-11 (2010).  The fund was purportedly meant to be used to assist initiatives that promote “prevention, wellness, and public health activities.”  Id.  Legitimate questions have been raised, however, about whether the fund is being deployed to help advance ideological agendas that have more to do with dictating personal food and beverage choices than effectively combatting obesity.

Thus far, municipalities in six states which have pursued efforts to discourage consumption of “sugar-sweetened beverages” have been given grants.  The six states are New York, Oregon, West Virginia, Massachusetts, Pennsylvania, and Nebraska.  Id.  Combined, these states have received nearly $40 million in grants. Philadelphia reportedly received $15 million to “make healthy foods more available and affordable.”  This past June, coincidentally (or not?), the Philadelphia City Council considered (and ultimately rejected) a proposed tax on sugary drinks.

The Secretary of Health and Human Services has unilateral authority to decide who receives grants from the Fund, a power she has delegated to the Centers for Disease Control, which will oversee the grants through the “Communities Putting Prevention to Work” (CPPW) initiative.  CPPW’s director last December suggested, during a slide presentation, that the Fund could help to limit the availability of sugary drinks, and indicated that one way to do that would be “changing relative prices” of the products.  Perhaps inspired by such suggestions, the House of Representatives voted last April to eliminate the Fund.  No action has been taken in the U.S. Senate.

The Fund’s assets—and thus potential disbursements—will continue to increase until 2015.  At that point, the Fund will receive $2 billion annually from the government.  Once more state and local governments recognize that they can receive government funding for discouraging soda consumption, they too will likely begin these types of efforts.  While it is unlikely that the Prevention and Public Health Fund will be defunded any time soon, how the money is being disbursed is certainly merits more aggressive oversight.