Food taxes between ability-to-pay principle and extra-fiscal purposes

Antonio Felice Uricchio - Full professor of Tax Law – Rector

Università degli Studi di Bari Aldo Moro

Summary: 1. Fat taxes and ability-to-pay principle 2. Fat taxes as an educational

measure for a correct life-style 3. The effects of taxation on junk food 4. International

experiences and Italian tax proposals on fatty foods and soft drinks 5. Brief notes on the

compatibility of European community law and fat taxes 6. Prospective of introducing

“nutritional” taxes at Regional level 7. Conclusions.

1. Fat taxes and taxable capacity

As emerges from more or less recent past experiences, food taxes have been largely adopted to

increase revenue. Different taxes have been enforced over time to discourage food consumption,

food production and food processing. The liability to taxation, at times even imposing heavy

taxes, on the production or consumption of certain foods depends more on the intent to influence

the behaviour of consumers, discouraging harmful ones, rather than for obvious revenue reasons.

These choices are supported by the tax models proposed by distinguished economists

“differential of excess consumerism” 1

or that of optional and non-essential commodities.2

1 On the subject, cf. F. Forte, Principi di economia finanziaria, Milano, 1988 2 Cf. J.Buchanan, Public Finance in Democratic Process: Fiscal Institutions and Individual Choice, Indianapolis, 1967 (chapter

4, p. 23) “Under this model of clearly discriminatory taxation, it is more difficult to leave aside differential impacts on separate

persons and groups, but we may commence the analysis by neglecting this aspect, even here. We may do so by supposing,

initially, that all members of the group purchase and consume the single product that is to be taxed, say, whiskey or tobacco, and

that the differential patterns of consumption are not significant enough to generate widely different patterns of response. In such

a model, as in each of the indirect tax models especially, the tax-price that the individual must pay for a unit of the public goods

depends directly on the behavior of other persons in an exceedingly complex chain of economic interdependence. To estimate

this tax-price, the individual must predict the reactions of those whom the legislature makes initially responsible for payment.

The behavior of retailing firms must be predicted, along with the responses of resource suppliers and product demanders in the

aggregate. The difficulties in making accurate predictions are evident, but it should also be noted that, precisely because o f the

However, there are cases, fortunately not frequent, in which taxes have been introduced on the

production and consumption of food among the lower class, considering their wide application

and the consequent effect on public finance (see.g., the well-known tax of July 7th

, 1868 on

grinding and or milling3 introduced after a troubled discussion in the Parliament in the period

immediately after the Italian unification to reach a balanced-budget4 but also the taxes on ice,

chicory and other coffee surrogates, sugar, etc,5) .

Both for sumptuary taxes on food and for those due by the lower socio-economic class, their

application has remained completely foreign to the appreciation of their potential effect on health

and the environment (and for the latter also disregarding the regression and the social effects).

selectivity of the tax, these difficulties are not so great as those encountered under either of the two institutions previously

examined in this chapter. Textbook economics makes this point. The primary adjustments to be predicted take place via increases

in the prices of the taxed commodity. Adjustments in factor prices generally, while predictable to a degree, normally assume

quite secondary significance. Naïve predictions made by the potential taxpayer to the effect that commodity prices will increase

by the amount of the expected tax per unit will not be wildly in error if markets are reasonably competitive, if resources are not

highly specialized, and if time is allowed for supply adjustments. This naïve prediction enables the potential taxpayer to make

some predictions of his own about responding to the tax. The interdependence among all taxpayers with regard to the aggregate

base of tax remains, but insofar as all persons are predicted to act similarly, tax-price can be estimated with some accuracy, at

least as compared with alternative tax institutions”. 3 For tax levying see S. Buscema - N. d’Amati, Documenti e discussioni sulla formazione del sistema tributario italiano,

Padova, 1961; vol. I; N. d’Amati, La progettazione giuridica del reddito, vol. I, Padova, 1973, p. 33; A. Plebano, Storia della finanza italiana dalla costituzione del nuovo regno alla fine del secolo decimonono, Torino, 1899; A. Sraffa, Questioni

sull’imposta di ricchezza mobile, in Riv. dir. comm., 1907, II, p. 178; G. Parravicini, Lineamenti storici del sistema tributario

italiano, in “Ulisse”, Tasse e tassati, 1959, p. 9; F. A. Repaci, La finanza pubblica italiana nel secolo 1861-1960, Bologna 1962;

G.F. Liberati, La formazione del diritto tributario dell’ottocento. Le tasse sugli affari , Napoli, 1983; Id., voce Tributi (diritto interm.), in Enc. dir., vol. XLV, Milano, 1992, p. 128; G. Galeotti, Le origini dell’imposta sui redditi di ricchezza mobile in

Italia, Milano, 1967;G. Marongiu, Alle radici dell’ordinamento tributario italiano, Padova, 1988, p. 150; P. Boria, voce Sistema

tributario, in Digesto, disc. priv. sez. comm., vol. XIV, Torino, 1997, p. 66., P. Clementini, Legge sull’imposta di ricchezza

mobile annotata, in Raccolta delle leggi speciali, vol. II, Torino, 1886; G. Marongiu, Alle radici dell’ordinamento tributario italiano, Padova, 1988; Id., Storia del fisco in Italia, La politica fiscale della destra storica (1861-1876), Torino, 1995. G.

Carano Donvito, L’economia meridionale prima e dopo il Risorgimento, Firenze, 1928, p, 286. 4 Despite the sad fame that accompanied the tax on minced meat, too often considered an instrument of fiscal oppression towards

the lower social classes, it should be considered as in the intentions of the government of the time to simplify the tax and revenue system. In the report on the bill, the Minister of Finance Quintino Sella, after pointing out how the deficit had reached

approximately 190 million lire (1868), noted that this tax on grinding and milling would respond to the principles of

convenience. of the levy, It should be remembered that the taxpayer was required to pay taxes based on the weight of the grain

brought to the mill, according to different rates for different cereals (from a minimum of 50 cents per 100 kilograms for chestnuts to a maximum of 2 Italian Lire per 100 kilograms for wheat), determined by the miller on the basis of the number of revolutions

made by the milling wheel, detected by a mechanical counter to which it applied. 5 Mostly excise taxes some of which were later replaced by fiscal monopoly or by national or local consumer taxes.

Only recently, the need to promote healthy eating lifestyles has induced the legislator to act, not

only within a regulatory and sanction enforcing framework, 6 but also through fiscal instruments

based on their capacity to condition individual and social group behaviour. It is in fact clearly

evident how tax norms can “orient” eating habits by both taxing unhealthy food and by reducing

taxes on healthy foods (considering the foods included in the so called “Mediterranean diet”)

thus promoting and incentivizing the consumption of the latter. In the last few years food tax is

once again at the centre of the debate, in Italy and in many European countries, especially since

its “extra fiscal” function has been appreciated contributing in the improvement of health

conditions and in lowering the incidence of certain tumours and cardiovascular diseases7 (and

consequently a reduction in the health care expenditure8). The appreciation of these extra fiscal

aims9 can either induce them to be included in the taxable income (production or consumption of

goods) or exclude them, foreseeing a tax return destination compatible with the aim undertaken.

However, the scientific proof or full awareness of the positive or negative effects caused by the

production or consumption of food on health10

and/or the environment11

is fundamental to

6 Pursuant to UE Regulation CE 178/ 2002 art. 3, n. 1 the food law lays down the general principles and requirements

establishing the European Food Safety Authority and the procedures in matters of food safety. See D.Pisanello C.Biglia e C.M.

Pellicano, Guida alla legislazione alimentare, Roma, 2010,, p. 15. 7 M. Liuccio, Giovani salute e società, Milano, 2012 8 According to the figures published on the website of the Italian Ministry of Finance, the Health care costs amount to more than

100 billion Euro per year. 9 M. Pugliese, La finanza ed i suoi compiti extrafiscali negli stati moderni , Padova, 1932. F. Fichera, Imposizione ed extrafuscalità nel sistema costituzionale, Napoli, 1972, p. 10. F. Batistoni Ferrara, in Commentario alla Costituzione (edited by

G. Branca and A. Pizzorusso), Bologna 1994, p. 1 .

10 P.M.Johnson e P. Kenny Nature Neuroscience, 2010, p. 635 Dopamine D2 receptors in addiction-like reward dysfunction and compulsive eating in obese rats , quoting “We found that development of obesity was coupled with emergence of a progressively

worsening deficit in neural reward responses. Similar changes in reward homeostasis induced by cocaine or heroin are

considered to be crucial in triggering the transition from casual to compulsive drug-taking. Accordingly, we detected

compulsive-like feeding behavior in obese but not lean rats, measured as palatable food consumption that was resistant to disruption by an aversive conditioned stimulus. Striatal dopamine D2 receptors (D2Rs) were downregulated in obese rats, as has

been reported in humans addicted to drugs. Moreover, lentivirus-mediated knockdown of striatal D2Rs rapidly accelerated the

development of addiction-like reward deficits and the onset of compulsive-like food seeking in rats with extended access to

palatable high-fat food. These data demonstrate that overconsumption of palatable food triggers addiction-like neuroadaptive responses in brain reward circuits and drives the development of compulsive eating. Common hedonic mechanisms may

therefore underlie obesity and drug addiction”. 11 P. SELICATO, La tassazione ambientale: nuovi indici di ricchezza, razionalità del prelievo e principi dell’ordinamento

comunitario in Riv.dir.trib. intern., 2004, p. 277, secondo cui “l’ambiente viene utilizzato nella definizione della fattispecie

tributaria con due diverse modalità: talvolta esso è considerato lo scopo del tributo attraverso la previsione di una specifica

destinazione del gettito al finanziamento di attività pubbliche rivolte alla sua salvaguardia; in altri casi è indicato come oggetto di

prevent distortions of the food market and of free competition. The taxes in question, without

denying their “fiscal” purpose creating revenue could produce both financial advantages (by

decreasing for example the health care expenditure) and health benefits. Thus, taxing food, can

lead, not only to a positive taxable capacity by production and consumption, but it can also

express a sort of “qualified taxable capacity”, consisting of the saving, even if only potential and

future, on public spending (like the health care budget). If the principle of taxable capacity

appears undeniable in expressing the basis, the limit12

and the tax measure 13

, must be sought in

the unequivocal manifestations of wealth14 which certainly include the consumption, the

production and the transfer of food. At the same time, it is evident that the decrease in the

health care budget and thus of public expenditure constitutes an expression of interest for the

financial balance which and in turn includes and absorbs the fiscal balance15

. It cannot be

ignored that forms of levy employed to increase revenue, by virtue of the relationship between

object to be taxed, which is a detector of economic strength, behaviour of the taxpayer and a

decrease in expenditure, even if only a future decrease, appear fully adherent to the principle of

taxable capacity intended as a “basic rule in the budget allocation” and as a “community

fundamental value to ensure the efficiency of the financial affairs of the State”16

tutela alla stregua di criteri extrafiscali che ispirano incentivi e disincentivi. In questa ottica si muovono gli orientamenti

internazionali, che hanno inteso definire “environmental taxes” o “ecotaxes” tutti quei tributi “introduced for environmental

reasons or having environmental effects independent of the motives behind the tax or charge”1 o, comunque, comprendere i

tributi ambientali tra gli “economic instruments in environmental policy”2. In tutte queste definizioni si rinviene una marcata

finalizzazione dei tributi in esame alla funzione di indirizzo e coordinamento delle attività dei privati (siano esse di produzione o

di consumo) a finalità di salvaguardia di livelli sostenibili nelle condizioni di vita”. In dottrina, cfr. F. PICCIAREDDA - P.

SELICATO, I tributi e l’ambiente (Milano, 1996; P. LAROMA JEZZI, I tributi ambientali, in P. Russo, Manuale di diritto tributario,

parte speciale (Milano, 2002), p. 319 ss.; C. VERRIGNI, La rilevanza del principio comunitario “chi inquina paga” nei tributi

ambientali, in Rass. trib.”, 2003, 5, p. 1614 ss. I. MUSU, Una nota sulla teoria delle riforme fiscali ambientali , in Riv. dir. fin. sc.

fin., 1999, pag. 2, F. AMATUCCI, Le fondamenta costituzionali dell’imposizione ambientale (Napoli, 1993). 12 A. Fantozzi, Diritto tributario, Torino, 2003, p, , 28, ss. A. Fedele, La funzione fiscale e la “capacità contributiva” nella

Costituzione italiana in L.Perrone, - C. Berliri, Diritto tributario e Corte Costituzionale, p. 14. 13 Cf. E. De Mita, Introduzione, in L.Perrone, - C. Berliri, Diritto tributario e Corte Costituzionale, Napoli 2006, p. XVI . 14 G. Gaffuri, voce Capacità contributiva, in Dizionario di diritto pubblico (edited by S.Cassese), vol. II, Milano 2006, p. 788 . 15 P. Boria, L’interesse fiscale, Torino, 1998, L. Antonini, Dovere tributario, interesse fiscale e diritti costituzionali , Milano,

1996. 16 Constitutional court verdict n. 87 of 1962

In this respect, it is useful to remember that the very close link between tax levy and public

expenditure is evident already in article 53 of the Italian Constitution17

. This is further

strengthened by the establishment of the financial balance as a constitutional principle present in

articles 81, 97 and 119, as modified by the constitutional law no. 1 of 2012, which was adopted

to align the internal constitutional system to the so called “fiscal compact” 18

. As is known,

pursuant to the agreement, better known as the “Treaty on Stability, Coordination and

Governance in the Economic and Monetary Union” approved on March 2nd , 2012 by 25 of the

27 countries. Member states bound by the fiscal provisions of the treaty shall guarantee their

national budget be in balance or surplus under the treaty's definition, avoid excessive public debt

and guarantee economic stability within the Eurozone, enacting, a domestic constitutional

"implementation law" and establishing a self-correcting mechanism 19

. The treaty defines a

balanced budget as a general budget deficit less than 0.5% of the gross domestic product (GDP),

(and less than 1.0% of GDP if the debt-to-GDP ratio is significantly below 60%) and an annual

reduction equal to one twentieth (5%) of the debt in order to attain the debt-to-GDP ratio of 60%

within a period of twenty years (Title III and IV). The new article 81, comma 3 of the Italian

Constitutional Law does not limit itself to the principle of a balanced budget but foresees that

each law which has economic implications, including the Budget Law must not limit itself to

defining the resources for economic coverage of the new and increased expenditure but must

also be directly financed (and not only indicating the required resources to cover the

expenditure).

17 M. Poggioli, Indicatori di forza economica e prelievo confiscatorio, Padova, 2012, p. 4 . 18 Cf. G. Napolitano, La nuova governance economica europea: il Meccanismo di stabilità e il Fiscal Compact - Il Meccanismo

europeo di stabilità e la nuova frontiera costituzionale dell'Unione, in Riv.dir.amm., 2012, n. 5. A. Di Pietro, Federalismo fiscale e nuova governance europea, in Governo della finanza pubblica e federalismo fiscale, Bari, 2012, p. 130. L. Bernardi,

Economic crisis and taxation in Europe, in Riv.sc.fin.dir.fin., 2011, I, p. 176, quoting“according to international economic

organisations and to those studies carried out in this field, once again the suggested solution should be found in reforms …

which could help generate much – needed revenue as well as promote greater economic growth which in turn could exert a positive effect on the revenue levels themselves”. 19 R. Perez “Dal bilancio in pareggio all’equilibrio tra entrate e spese” , in Giorn dir.amm. n.. 10/2012 N D’Amico “I rapporti

fra la nuova legge costituzionale e il fiscal compact”, ibidem

It is clearly evident that if Article 53 of the Italian Constitution defines the connection between

the economic contents by which one can rationally deduce the subjective adequacy of the tax 20

and the obligation to pay, articles 81, 97 and 119 of the Italian Constitution express the

commitment, though only as a trend, to pursue the financial balance between revenue and

expenditure by any financial means, including certainly taxation. In determining this taxation21

,

the legislator, as well as using indices that according to past experiences and common sense are

detectors of wealth, such as income, assets, purchases, capital increase, etc.22

, is called to impose

taxation on any act with economic implications that might also generate a virtuous circle in

terms of expenditure, in line with international commitments and constitutional rules and in

accordance with the principles of equality23

, non-arbitrariness24

and rationality25

.

Summing up the terms of the question , it is quite clear that manifestations of wealth such as

foods harmful to health can not only be taxable because they are compatible with the principle of

ability to pay, but above all they have the advantage of being fully compliant with the principles

of balance and financial efficiency ratified by the new constitutional norms and especially with

art. 32 of the Italian Constitution concerning the protection of health. Indeed, it is the pursuit of

health as a goal that suggests taxing situations or activities that are considered pernicious, which

may, in turn, increase expenditure thus, qualifying the taxable capacity manifested. 26

. The

virtuosity of the tax emerges due to its ability to contribute to the accomplishment of the extra

fiscal purposes, so that the incoming revenue does not constitute its main justification but a

20 Cf. F. Moschetti, Il principio di capacità contributiva, espressione di un sistema di valori che informa il rapporto tra singolo e comunità in L.Perrone, - C. Berliri, Diritto tributario e Corte Costituzionale, p. 44. 21 Cf. F. Moschetti, Il principio di capacità contributiva, espressione di un sistema di valori che informa il rapporto tra singolo e

comunità in L.Perrone, - C. Berliri, Diritto tributario e Corte Costituzionale, pag. 44. 22 See N. d’Amati, Diritto tributario, Teoria e critica, p. 82. 23 See F. Gallo, L’uguaglianza tributaria, Napoli, 2012, p. 16 . 24 Declaratory judgement of 7th July 1986, n.178; 3rd December 1987, n.465; 19th November 1987, n.400; 4th May 1995, n. 143;

26th July 2000, n. 362; See also judgement of 21st May 2001, n.156 in Rass. Trib., 2001, from p. 833. 25 See Constitutional Court Judgement 22nd April 1997 n. 111; P. Boria, Il bilanciamento di interesse fiscale e capacità contributiva nell’apprezzamento della Corte Costituzionale in L.Perrone, - C. Berliri, Diritto tributario e Corte Costituzionale,

cit. 64, and L. Antonini, Dovere tributario, interesse fiscale e diritti costituzionali, Milano, 1996. 26 F. Gallo, L’uguaglianza tributaria, cit., pag. 14.

matter of minor importance 27

Moreover, even if the taxpayers stopped consuming or producing

harmful foods, the decreased revenue would, in part, be “compensated” by lower health care

costs. In this regard, it seems possible to argue that the best form of taxation for extra fiscal

purposes is not one that is imposed but rather one that achieves the set goal. However, this does

not mean that the taxable capacity represents a legal requirement which is "yielding" if compared

to the extra fiscal purpose, which remains a stronghold of constitutional legitimacy of taxation

and of the principles of fair distribution and allocation of substantive equality 28

.

From a wider angle you can highlight that the taxes in question, although potentially having a

transitory and fortuitous duration, can become permanent only by their conformity to the criteria

of reasonableness29

and fairness of distribution30

and social acceptance. These values, while

composing the ethological humus from which our Constitution31

, draws its strength , must , in

fact, find concrete expression in the tax forms even if novel and oriented towards manifestations

of wealth, such as the consumption and the production of food harmful to health, which until

now have not been given much consideration.

2. Fat taxes as an educational measure for a correct lifestyle

As shown the so called “Fat tax” was created for the purpose of taxing food harmful to health

and directly responsible for non-contagious diseases such as tumours, diabetes and

cardiovascular conditions. According to World Health Organization studies the highest risk

factors, after smoking and pollution, are related to nutrition and physical inactivity due to their

association with some physiological functions: hypertension, obesity , hyperglycemia and

hyperlipidemia. 32

Increased body weight in fact can lead to metabolic effects on the level of

27 R. Balladores Saballos, Le imposte con fini extrafiscali. Profili fiscali e di teoria generale in A. Uricchio, (ed.), Imposizione di scopo e federalismo fiscale, Rimini, 2013, p. 31. 28 R. Balladores Saballos, Le imposte con fini extrafiscali , cit., p. 37. 29 L: Einaudi, Miti e paradossi della giustizia tributaria, Torino, 1912, p. 348. 30 L.V. Berliri, La giusta imposta , Roma, 1945, p. 317. 31 F. GALLO, Le ragioni del fisco. Etica e giustizia nella tassazione, Bologna, 2007, p. 101. 32 See WHO, Action Plan for the Global Strategy for the Prevention and Control of Non-communicable Diseases 2008-2013,

Ginevra, 2008.

cholesterol and triglycerides which may cause thrombosis, infarction and other coronary diseases

and prevalent tumours. It has been demonstrated that the primary cause of increased body weight

is related to dietary habits which exceed in soft drinks and fatty foods. The excessive intake of

sugars and fats, especially unsaturated fats, leads to a high risk of overweight and obesity. There

is thus a direct correlation between junk food and body mass index. Only a healthy lifestyle,

balanced diet and physical activity can prevent weight related diseases.

According to Italian ISTAT data, in 2010, in the over 14 year old age group, obesity accounts for

10.3 % of the population33

which is constantly increasing compared to previous years 34

.

Although the Italian figures are far below those of other European countries this data is alarming.

The percentage of obese people, based on the total population aged 15 and over, sees Italy rank

among the countries with the lowest values (10.3) together with Sweden and France (11.2 for

both) and the Netherlands (11.8), where the values are calculated by taking the adult population

(18 years and over); the highest rates are recorded in Hungary (19.5), Greece (18.1) and Czech

Republic (17.4). 35

.

To deal with this new emergency caused by poor eating habits, individual states seek to

intervene with fiscal or administrative measures or by means of information, awareness and

educational campaigns.

To discourage citizens from consuming fatty foods or soft drinks the State intervenes directly on

the market by assuming a "paternalistic"36

or "supervisory" role . It should be noted that, as in

other contiguous fields of interest (such as the environment), initially administrative instruments

were adopted, based on the logic of command and control. The legal-administrative regulation is

based on imposing limits on the consumption of junk food (command phase) and the subsequent

monitoring of compliance by applying restrictive measures (control phase). Whenever these

limits are exceeded, administrative or even penal sanctions are applied (for example, during the

33 The estimate was calculated using the Body Mass Index (BMI) which is the relationship between weight and height declared

by the subjects. 34 Cf. ISTAT, Noi Italia. 100 statistiche per capire il Paese in cui viviamo, Roma, 2012, 104. 35 Cf. ISTAT, Noi Italia. 100 statistiche per capire il Paese in cui viviamo, Roma, 2012, 105. 36 Cf. R. H. THALER – C. R. SUNSTEIN, Nudge. La spinta gentile, Milano, 2009, 84.

period of prohibition in the United States in the twenties when trade in alcoholic beverages and

"parallel markets " were strongly suppressed by the law). Despite the wide use of such models of

command and control, due to the simplicity of applying the dialectic: precept - sanction, it has

quickly been shown to be inefficient. It is in fact, distinguished by rigidity due to a control phase

which is characterized by excessive bureaucracy and by a constant, yet unlikely monitoring of

the territory. Controls are essential, especially for hygienic and sanitary reasons and to

counteract widespread phenomena of counterfeiting37

, but they are costly and, although in some

cases can be dissuasive, they do not always lead to the desired effects 38

.

The inadequacy of the instruments of command and control has led to a sharp change of course

in the strategies to combat obesity and the diseases related to incorrect eating habits, supporting

the direct regulation, economic incentive instruments (market-based instruments) and tax

deductions or relief. The purpose of these taxes is to affect the cost of fatty foods or soft drinks

in order to increase the price and so discourage consumers from buying them. The tax on

unhealthy foods, affecting their consumption, generally determines the increase in their price,

changing the balance of the market. Through the establishment of a national extra fiscal tax 39

it

is, therefore, possible to discourage consumers from the consumption of unhealthy foods

orienting them towards healthier and more wholesome products. As already noted, the extra

fiscal purpose is by far prevalent with respect to the fiscal one, thus constituting its real

justification. There is no doubt that food taxes are ascribable among those with extra fiscal aims,

considering such those introduced in the legal system through a taxable income event that has a

disincentive or promotional effect40

or through a quantitative structure (modulation of the tax

37 Cf. B. Notarnicola- P. Giungato, Frodi e contraffazioni nel settore agroalimentare: aspetti merceologici in Nuove piraterie e

ordinamenti giuridici interni e internazionali , edited by A. Uricchio, Bari 2011, 38 Although such policies have not led to the desired results, as of today there are many limitations and prohibitions imposed by some States to discourage the excessive consumption of fatty foods: in some countries, for example, it is forbidden to give toys

as promotional gifts to children in fast food chains.

39 See R.Balladares Saballos, Le imposte con fini extrafiscali. Profili fiscali e di teoria generale cit. p. 29. 40 F. FICHERA,, Imposizione ed Extrafiscalità nel Sistema Costituzionale, cit. pp. 47-49, Id, La giurisprudenza della Corte

costituzionale sul tema dei rapporti tra imposizione ed extrafiscalità”, Dir. Prat. Trib., Vol. II, 1973,from p. 774, and

“L´extrafiscalità nell´ordinamento costituzionale della Repubblica Federale Tedesca”, Dir. Prat. Trib. Vol. I, 1974, from p. 592;

base) which must have a strong means to aim relationship according to the extra fiscal goal to be

reached41

. To this must be added that the extra fiscal aim undertaken has a particularly relevant

constitutional value which is the protection of health in its broadest sense of physical and

emotional well-being42

( art. 32 of the Constitution) and substantive equality43

.

Returning to the tax on fatty foods, it should be pointed out that it is based on a proposal by Prof.

Kelly Brownell, an obesity expert at the University of Yale, who noting that junk food was the

cheapest on the market, proposed to establish a tax that would allow the prices of junk food to be

aligned with market prices44

. The income would then have been used to finance correct eating

campaigns45

. Bromwell’s thesis, is therefore, inspired by the Pigouvian tax model 46

that allows

to include within the price of the commodity all negative externalities generated by its

consumption. The market price of certain “unworthy” goods does not reflect the true social cost

borne by the whole community; it appears, therefore, necessary to introduce a tax in order to

discourage the consumption of these goods increasing their gross price. 47

The tax, however,

should be structured so as to prevent the producers to absorb the tax. In order for the taxation

levied to have a real deterrent effect it is necessary that the charge be passed on to the consumer

who will then bear the burden of taxation. If the tax burden is borne entirely by the producer, the

consumers will not notice any change in the price of the property, thus leaving their preferences

unchanged.

P. HERRERA MOLINA, ., Derecho Tributario Ambiental (Enviromental Tax Law). La introducción del interés ambiental en el

ordenamiento tributario, Madrid, 2000, pp. 4 to 50. 41, J.M.. AIZEGA ZUBILLAGA,., La utilización extrafiscal de los tributos y los principios de justicia tributaria, Bilbao, 2001,

pp. 179, 180, 181. 42 In the Preamble to the Constitution of the World Health Organization, health is defined as “a state of complete physical,

mental and social well-being and not merely the absence of disease or infirmity”. 43 F.FICHERA, Le Agevolazioni Fiscali, Padova, 1992, from p. 148 44 See K. BROWNELL, Get Slim with Higher Taxes, in The New York Times, 15th December 1997, p. 2. 45 Cf. K. BROWNELL, Food Fight: The Inside Story of the Food Industry, America's Obesity Crisis, and What We Can Do

About It, New York, 2004. 46 See A. C. PIGOU, Economia del benessere, Torino, 1968. 47 See R. GRIFFITH – L. NESHHEIM – M. O’CONNEL, Sin taxes in differentiated product oligopoly: an application to the

butter and margarine market, in CeMMAP Working paper, 2010, n. 37.

A tax on the consumption of “junk food” can be structured indirectly through, for example, an

increase in VAT applied to certain fatty foods or soft drinks 48

. In this case, the taxation of

unhealthy products does not take place through the introduction of new taxes but with an

increase of the classical indirect taxation. Consider the French case where there has been a

gradual increase in VAT from 5.5% to 19% on fatty snacks, sweets and confectionaries, etc.

which will be counterbalanced by a reduction in VAT on fruit and vegetables49

.

Alternatively, the legislator could adopt a tax charge imposed directly on the consumption of a

food based on, for example, the amount of potentially harmful substances (saturated fat) or

calorie content.50

3. The effects of taxation on junk food

As already pointed out, the introduction of a fat tax on junk foods pursues the aim of protecting

public health 51

. The State, in fact, takes on the patronising role to both safeguard and warrant its

citizens, as well as addressing their changing preferences through economic disincentives 52

. The

World Health Organization, in fact, favourably regards the establishment of a tax on fatty foods,

as such as they affect consumer choices 53

. Opposing the consumption of "harmful" foods,

however, not only pursues the objective of protecting the health of citizens, but results in

substantial savings of public money in terms of reduced health care expenditure.

48 For an interesting study on the increase in VAT on fatty foods see T. MARSHALL, Exploring a fiscal food policy: the case of

diet and ischaemic heart disease, in British Medical Journal, 2000, 301 ss. 49 On the application of a 4% VAT reduction in Italy see resolution n. 23/E Agenzia delle Entrate of 8th April 2013, n. 23/E with

the note by S. ANGELI, Insalate miste pronte da mangiare. A dieta anche l’Iva: aliquota al 4%, disponibile su www.fiscooggi.it, 8th April 2013. 50 See M. JACOBSON – K. BROWNELL, Small taxes on soft drinks and snack foods to promote health, in American Journal of

Public Health, 2000, from p. 854. 51 See A. LEICESTER – F. WINDMEIJER, The “fat tax”: Economic Incentives to Reduce Obesity, in The Institute for Fiscal Study, Briefing Note, 2005, 49. 52 Contra R. HOLOCOMBE, Teoria politica della tassazione selettiva, in M. TROVATO (Ed.), Obesità e tasse. Perché serve

l’educazione, non il fisco, Torino, 2013, from p.61. 53 Cf. WHO, Global Strategy on Diet, Physical Activity and Health, Ginevra, 2004; WHO, Action Plan for the Global Strategy for the Prevention and Control of Non-communicable Diseases 2008-2013, cit. - see A. M. THOW - S. JAN - S. LEEDER – B.

SWINBURN, The impact of fiscal policy interventions for diets, obesity and chronic disease: a systematic review, in Bulletin of

the World Health Organization, 2010, from p. 609.

Other studies have shown, however, that a tax on junk food does not lead to a change in

consumer preferences 54

, especially in the short term 55

. The introduction of low rate taxation,

thus causing a minor increase in the cost of goods, may not result in the desired effect in terms of

reducing the consumption 56

. It must be considered, however, that the greater the elasticity of

demand with respect to price, the greater the substitution effect caused by the imposed taxation.

In this case, the fiscal tool acts as both a disincentive, as well as having a redistributive function:

in the first case, the purpose of the tax is to change the habits of production and consumption

through the imposition of a tax burden; in the second, however, the economic withdrawal serves

the purpose of procuring revenue that can subsequently be allocated to dietary education and

prevention.

A fat tax could also lead to a distortion in the balance of market, thus causing damages to the

economic system. Consider the case in which a consumer, due to the introduction of a tax on soft

drinks may decide to acquire lower priced products which could potentially be even more

harmful. Other studies have also shown that surcharges on junk food may have regressive

consequences by having an affect on the less affluent, who consume more junk food as it is

generally cheaper 57

. It is no coincidence, according to the latest Italian ISTAT surveys, that the

highest percentages of obese adults are found in the less affluent Italian regions, especially in

54 See O. MYTTON – A. GRAY – M. RAYNER – H. RUTTER, Could Targeted Food Taxes Improve Health?, in Journal of

Epidemiology and Community Health, 2007, 689 ss.; D. GOLDMAN – D. LAKDAWALLA – Y. ZHENG, Food prices and the

dynamics of body weight, in the National Bureau of Economic Research, Working Paper 2009, n. 15096; G. YANIV – O. ROSIN

– Y. TOBOL, Junk-food, home cooking, physical activity and obesity. The effect of the fat tax and the thin subsidy, in Journal of Public Economics, 2009, from p.823; G. TULLOCK, Le accise in una società rent-seeking, in M. TROVATO (Ed.), Obesità e

tasse. Perché serve l’educazione, non il fisco, cit., p.97. 55 See O. ALLAIS – P. BERTAIL – V. NICHÈLE, The Effects of a Fat Tax on French Households’ Purchases: A Nutritional

Approach, in American Journal of Agricultural Economics, 2010, 1, from p. 228.; H. CHOUINARD - D. DAVIS – J. LAFRANCE – J. PERLOFF, Fat Taxes: Big Money for Small Change, in Forum for Health Economics and Policy, 2007

available on www.bepress.com/fhep/10/2/2 ; R. GRIFFITH – L. NESHEIM, Empirical Estimates of the Impact of a Fat Tax,

2008, available on www.idei.fr ; R. WILLIAMS – K. CHRIST, Tassare i vizi: le accise sono efficient?, in M. TROVATO (Ed.),

Obesità e tasse. Perché serve l’educazione, non il fisco, cit., from p.187. 56 See H. CHOUINARD - D. DAVIS – J. LAFRANCE – J. PERLOFF, The Effects of a Fat Tax on Dairly Products, in

CUDARE, Working paper 2005, n. 1007. 57 For a economic analysis see M. CARAHER - G. COWBURN, Taxing food: implications for public health nutrition, in Public

Health Nutrition, 2005, 8, from p.1242.; W. SHUGHART II, Teoria economica dello Stato-mamma, in M. TROVATO (Ed.), Obesità e tasse. Perché serve l’educazione, non il fisco, cit., from p. 35. N.C. SALERNO , Food tax alla prova, available on

www.nelmerito.com 11th December 2012. See alsoD. CACCIONI, Costa caro il cibo spazzatura, available on www.lavoce.info ,

9th October 2012.

Basilicata (12.7), Puglia ( 12.3 ), Calabria, Abruzzo ( both 11.7 ) and Campania (11.6) 58

.

Taxation, therefore, ends up by harming whoever consumes poor quality foods on the market at

lower prices and therefore creating an additional burden on the already vulnerable section of the

population59

. There has been an attempt to find remedies to this regression by earmarking the

revenues from taxation to subsidize healthy foods and healthy education. In this way, the

substitution effect induced by fat tax would not fall entirely back on the lower classes , as well

as, making the tax less converse. The problem could be solved by allocating a portion of the

income tax towards financing health services in favour of the more vulnerable or more at risk

categories, and therefore increasing the benefits in their favour 60

.

The effectiveness of utilizing a fiscal tool as the only means to tackle obesity is the subject of a

lively debate in the economic literature. Although it has been shown empirically that the taxation

of junk food leads to a reduction in its consumption, a correlation between the introduction of the

tax and the reduction of obesity or of overweight is not as of yet a commonly accepted. Shared

and at the same time more encouraging results have been obtained where the tax laws are

flanked by nutritional educational strategies 61

. It has, in fact, been shown how the rate of

overweight population is bound to decline when revenue from taxation is used to finance

educational interventions, especially in schools where not only the children, but also the parents,

were involved. The proposal to allocate the proceeds of a possible taxation on fatty Italian foods,

for the benefit of education and the promotion of a healthy diet, has been present for some time

58 Cf. ISTAT, Noi Italia. 100 statistiche per capire il Paese in cui viviamo, cit., 104. 59 R. LAGRAVINESE, Una “fat tax” per ridurre l’obesità in Italia?, available on www.nelmerito.com , 20th January 2012. 60 Cf. N. DIRINDIN – E. BRENNA – C. DI NOVI, Tassare il cibo spazzatura?, available on www.lavoce.info, 7th February

2012. 61 See F. KUCHLER – A. TEGENE – J. M. HARRIS, Taxing Snack Food: Manipulating Diet Quality Or Financing Information

Programs?, in Review of Agricultural Economics, 2005, 1, from p.4.; M. CARAHER - G. COWBURN, Taxing food: implications for public health nutrition, in Public Health Nutrition, 2005, 8, from p. 1242.; R. TIFFIN – M. SALOIS,

Diseguaglianze nell’alimentazione e nella nutrizione, in M. TROVATO (Ed.), Obesità e tasse. Perché serve l’educazione, non il

fisco, cit., from p.143.

62. The United States policy is also shifting in the same direction, with the White House

encouraging an awareness in favour of healthy foods .

Measures such as tax credits or tax deductions for the benefit of those who practice physical

activity 63

cannot but constitute an additional incentive for healthy lifestyles.

4. International experiences and Italian tax proposals on fatty foods and soft drinks

The Scandinavian countries were the first to introduce the fat taxes in their tax systems:

Denmark, already in 1922, had introduced tax levies on products with a high sugar content. The

adoption of this tax however, did not cause a reduction in the body mass index of the population.

Recently, Denmark has proposed a new tax on junk food that affects the consumption of foods

containing more than 2.3% saturated fat 64

; these include the notoriously fat products such as

butter, margarine and some types of oils and also red meat (pork, beef, steak, etc.). As from the

1st of October 2011 the Danes are required to pay a tax of 16 Danish kroner (about € 2.15) per

kilogram of fatty foods included in a table annexed to the regulations. According to some

estimates the expected revenue is at least 200 million euro per year plus an even greater saving

on health care costs.

While we can not as yet give definitive assessments, due to among other reasons the limited

temporal application of the norm, it seems that this new tax has not produced the desired results

to the point that proposals were made for its abrogation: the pressure exercised by the producers

of butter and fatty foods, both foreign and national (think of the producers of the famous Danish

cookies), damaged by a general increase in the price of their goods, the crisis of the entire

production chains linked to the taxed products as well as the opportunity to buy the same food

products at lower prices in neighbouring countries has led to the abrogation of the tax.

62 According to N. DIRINDIN – E. BRENNA – C. DI NOVI, Tassare il cibo spazzatura?, available on www.lavoce.info , 7 th

February 2012 . 63 Art. 15, comma 1, lett. i-quinquies foresees a tax deduction for “expenses, not exceeding a total amount of € 210, paid for the

annual membership and subscription, for children aged between 5 and 18 years old, to sports clubs, gyms, swimming pools and other facilities and sports facilities for the practice of amateur sports meeting the criteria identified by the President of the

Council of Ministers, or delegate Minister, in consultation with the Minister of Economy and Finance, and sports activities”. 64 See B. BIVONA, Danimarca: una fat tax a misura di linea e portafoglio, available on FiscoOggi, 21st October 2011.

Moreover, the statistics relating to the percentage of the Danish overweight population have not

improved resulting in the questioning of the tax on foods with a high sugar content that should

have been applied from the current year.

Since 1981 Norway has adopted a fat tax on sweets, chocolates and soft drinks; Finland on the

other hand only in 2011 introduced a tax of 0,75 Euro per kilogram on confectionaries.

Taxes on food, “harmful” to the health of citizens, have been introduced in other European

countries65

: in Hungary, for example, from the 1st of September, a chips tax is applied on

packaged foods with a high salt, sugar or carbohydrates content such as chips and chocolate with

different rates of 5% or 20%.66

. From the 1st of September 2011, national manufacturers are

expected to pay as tax revenue 5 guilders per litre on of soft drinks with a fruit content lower

than 25%, 100 guilders per kilogram of pre-packaged sweets and 200 guilders per kilogram of

salty snacks and food flavourings. Tax increases are also expected to be borne by those

producers whose foods have a salt content exceeding maximum levels or by importers of junk

food.

In August 2011 the French Prime Minister Fillon Fançois, proposed the introduction of a tax on

fizzy drinks as well as increasing the price of levy on cigarettes, liquor and rum. Established

since 2012, the so-called Coca-Cola tax, also known as tax soda (tax on carbonated beverages)

is applied in France on the consumption of sugary soft drinks to the extent of about two cents per

can67

. According to the French Government, the estimated revenue of about € 200 million per

year is intended to reduce the cost of harvesting and fruit picking jobs in agriculture as well as to

sustain the production of fruits and vegetables. The so called tax on Nutella that was supposed to

65 See European Commission, Tax reforms in the EU Member States, Working paper 2011, n. 28, according to which “Excise

duties on health related products such as tobacco and alcohol and, in some instances, sugar have been increased in Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, Greece, Latvia, Poland, Romania, Slovakia, Slovenia and Spain.

In Denmark, a novel excise duty has been introduced on saturated fats in dairy products and meat. Finland introduced an excise

duty on sweets and ice cream.”. For an analysis of the fat tax in the USA see S. DRENKARD, Strafare nella lotta all’obesità, in

M. TROVATO (Ed.), Obesità e tasse. Perché serve l’educazione, non il fisco, cit., from p.195. 66 See G. DI MURO, Ungheria: in arrivo la chips tax. Stop a malattie e obesità, available on www.fiscooggi.it , 13th July 2011. 67 For an analysis of the introduction of the fat tax in France see V. HESPEL – M. BERTHOD-WURMSER, Rapport sur la

pertinence et la faisabilité d’une taxation nutritionnelle, Parigi, July 2008.

hit the palm oil for human consumption, a very fatty ingredient used by the famous Italian

company, was not approved 68

.

In other countries, such as Sweden and the UK, the introduction of taxes on unhealthy foods or

beverages has been studied both at government level and by academics. In Britain, more

precisely, a tax on those who intend to start a new business devoted to selling fat food products

such as fish and chips, kebabs, etc. is being studied. It is an application on national scale of taxes

already present in the town of Oldham, near Manchester (city that has a very high percentage of

obesity in the population, especially in childhood).

Even outside the European boundaries there is a widespread of the use of taxes on junk food: in

the United States for example, a tax on soft drinks approximately 3-5% of the product price is

applied in order to counter the chronic problem of obesity in the local population.

In Italy also the establishment of a tax on the consumption of "not worthy" products such as

alcohol, junk food, etc. has recently been proposed. In the ministerial proposal of the new

Healthcare Agreement 2013-2015, in fact, the establishment of a levy on junk food was foreseen.

This revenue would have been allocated to the financing of health care structures pursuant to

article 20 of Law 67/1988 (maintenance, construction or upgrading of public health facilities,

technological upgrading, renewal, etc.).

The introduction of a fat tax was then finalized in the draft of the Balduzzi decree which

provided for the same period 2013-2015, "an extraordinary contribution to be paid by producers

of soft drinks with added sugar and sweeteners at a rate of 7,16 euro for every 100 litres placed

on the market as well a contribution to be paid by producers of spirits as a rate of € 50 for every

100 litres of spirits placed on the market” . The draft Decree, then made reference to subsequent

measures for the enforcement provisions, merely establishing that the revenue collected would

have to be allocated for the financing of the Essential Levels of Assistance ( LEA ) and in part

for the program on long-term care facilities. According to the intentions of the Minister

68 See E. FAZZINO, Tassa sulla Nutella in Francia, per ora nulla di fatto, in Il Sole 24 Ore, 15th November 2012; M.

MOUSSANET, La Francia vota la tassa-Nutella, in Il Sole 24 Ore, 15 th November 2012, p. 47.

Balduzzi, the tax would have to affect carbonated beverages as a rate of 2 cents per can,

producing an estimated revenue of 250 million euro; On the other hand, unhealthy foods would

not be subject to taxation on condition that the producers elevated their own quality standards69

.

This proposal was withdrawn because in need of further investigation70

and thus neither the law

decree nor its conversion law have produced the above mentioned dispositions 71

.

5. Brief notes on the compatibility of European community law and fat taxes

In the light of the models used in the different foreign countries, taxes on unhealthy foods tend to

act as indirect taxes on consumption and production, very similar to excise taxes

72. If

introduced, the fat taxes would be added, therefore, to the current excise taxes referred to

in EU Directive 2008/118/EC, implemented in Italy by Legislative Decree n. 48 of 29th

March 2010 like those on energy products and electricity (Directive 2003/96/EC), tobacco

(cf. Directives 95/59/EC, 92/79/EEC and 92/80) and alcohol and alcoholic beverages

(Directives 92/83 / EEC and 92/84). It should, however, be pointed out that while the

excise taxes bear upon the quantity of goods produced at rates according to measurement

unit of the relative product, the fat taxes should be applied in relation to the effects on

health (see the aforementioned tax models where the charge is modulated according to the

amount and weight of the saturated fat content in foods). Despite these differences, it

seems appropriate for the European Union to intervene in order to initiate a tax

harmonization on fatty foods73

of the member States and to make it coherent with the Council

law on excise tax. In fact, the establishment at National level of excise taxes on food products do

69 See the interview of the Minister Balduzzi in la Repubblica of 16 th April 2012, p. 35. On this subject see F. SASSI,

Informazione, incentivi e scelta: un approccio realistico alla prevenzione dell’obesità , in M. TROVATO (Ed.), Obesità e tasse.

Perché serve l’educazione, non il fisco, cit., from p. 163 . 70 A crucial role was played by the Trade Association’s lobbying actions. See E. SCARCI, I produttori: “La tassa non dà

salute”, in Il Sole 24 Ore, 28th August 2012, p. 8. 71 See Legislative Decree n. 158 of 13 th September 2012, converted into Law n. 263 of 8 th novembre 2012. 72 It is well known that the first excise taxes influenced consumption especially of aliments (in 1643, the English government introduced excise taxes on beer, spirits, cider and other beverages and it was later extended to other European countries). 73 See A. ALEMANNO – I. CARRENO, Fat taxes in the EU between fiscal austerity and the fight against obesity, in European

Journal of Risk Regulation, 2011, 4, 24 ss.

not seem incompatible with the aforementioned Council Directive 2008/118/CE provided

that the free circulation of goods is respected

74. The choice of the goods to be levied, should not

be different from state to state, but must be common to the European area based on

internationally agreed standards which identify the substances and the quantities that may be

harmful to the human body. The individual Member States will then be responsible, in more

detail at the sub-state levels of government, to define the prerequisite to be duly taxed in order

to protect not only the traditions and cultural identity of each country but also to pay tribute to

the demographic and health characteristics of the population.

Further doubts are raised as to the compatibility of new fat taxes with the European Union with

respect to the principles of non-discrimination, free circulation of goods and the freedom to

establish business enterprises anywhere. In principle, it is possible that the taxation of certain

types of products rather than others, may in fact, be discriminatory. The fat tax may well be

designed so as to mainly affect products from other Member States thus becoming equivalent to

a custom duty. This hypothesis, however, was considered rather remote by the European

Commission as this tax has no significant impact on international trade. It is evident that this

depends on how the prerequisites, the taxable status, the tax base and even the tax application

modalities are defined. In principle, it seems that a tax levy that affects certain substances

potentially harmful to human health respecting the limits of reasonableness and proportionality,

also required by the European Union, may above all be respectful of the principles of non-

discrimination and fundamental freedom of the Treaty.

6. Prospective of introducing “nutritional” taxes at Regional level

Following the approval of Law 42/2009 and of the subsequent Legislative Decree no. 68/201175

a prominent role could be played by the Regions: these institutions, in fact, could introduce a fat

74 See Council Directive 2008/118/CE article 1 75 On the subject please allow reference to my book , Il federalismo della crisi o la crisi del federalismo ?”, Bari, 2012 and the

cited references.

tax within the limits established at European Union and national levels 76

, in this manner the

diverse culinary traditions rooted in the different areas of the Peninsula would be safeguarded.

Moreover, this levy, especially if formulated as a purpose tax, could fully comply with the core

principles of Italian fiscal federalism 77

such as constraint, correlation, benefit, territoriality and

the prohibition of double taxation considering the concurrent competence in the field of health

protection referred to in art. 117 of the Italian Constitution. It appears desirable, therefore, that

the territorial autonomies can have margins of intervention in the field of fat taxes not only in

establishing regulatory guidelines, but also by providing incentives to preserve local culinary

identities.

It is evident, in fact, that under the principle of constraint any new regional tax must somehow be

"contained" within the legislative and administrative powers recognized by articles 117 and 118

of the Italian Constitution78. As the doctrine effectively states 79, constraint can be defined as

"the Regions that want to exercise the legislative power of taxation have the obligation to assess

in advance whether the constraint of the interest expressed by the premised object (that they will

choose) is included in the list of the constitutional powers of the Regions." The principle of tax

levying is rooted within the boundaries of the Regional competences and it is connected to the

reorganization model of the relationship between the State, the Regions and the Local

Governments delineated by the new Title V of the Italian Constitution, by virtue of which the

76 On the EU limits on Regional laws and Local Government’s regulatory powers on fiscal matters see C. SACCHETTO,

Federalismo fiscale tra modelli esteri e vincoli comunitari , in Riv. it. dir. pubbl. com., 1998, from p. 645, V. FICARI, «Scintille»

di autonomia tributaria regionale e limiti interni e comunitari , in Rass. trib., 2002, from p. 1229; A. CARINCI, Autonomia

tributaria delle Regioni e vincoli del Trattato dell’Unione Europea, in Rass. trib., 2004, from p. 1201; G. DELLA CANANEA, Il

coordinamento della finanza pubblica alla luce dell’Unione economica e monetaria , in Giur. cost.,, 2004, p. 79, L. TORCHIA, I

vincoli derivanti dall’ordinamento tributario nel nuovo titolo V della Costituzione in Le regioni, 2001, p. 1203, M. GREGGi,

Tributi regionali e vincoli comunitari: i limiti europei alla potestà impositiva regionale (quando al controllo di compatibilità

comunitaria passa anche attraverso la Corte Costituzionale), in Rass. trib. 2008, from p. 1448. 77 See F. GALLO, I principi del federalismo fiscale, in Dir. e prat. trib., 2012, 1, from p.23.

78 This principle is clearly illustrated by F. GALLO, Prime osservazioni sul nuovo articolo 119 della Cost., cit., pg. 584. 79 Cf.. F. GALLO, Prime osservazioni sul nuovo art. 119 Cost., cit., p. 585. Also V. FICARI, Sulla legittimità dell’imposta

regionale sarda sulle seconde case ad uso turistico, in Diritto del Turismo, 2007, 4, p. 369. For his definition in economic terms see

SVIMEZ, Quaderno 21, Il federalismo fiscale “schede tecniche” e “parole chiave”,pp. 184-185 M. BASILAVECCHIA, L. DEL

FEDERICO, F. OSCULATI, Il finanziamento delle Regioni a Statuto ordinario mediante tributi propri e compartecipazioni: basi

teoriche ed evidenza empirica nella difficile attuazione dell’art. 119 Cost ., in Le istituzioni del Federalismo, 2006, 5, p. 705.

various manifestations of autonomy are established not according to a hierarchical connection,

but according to an ordering and organizational principle that includes its inspirational criterion:

imperatively every institution, equally well-organized, has a sphere of own powers, regarding

certain material and territorial contexts, interests or values.80.

The relationship between the responsibilities of territorial authorities and the new tax involves,

moreover, that its revenue is allocated, in whole or in part, to the financing of the service and the

improvement of its quality. In this perspective, the recipients of the service are to be the

beneficiaries, thereby contributing to their funding81. From the principle of constraint, with

regards to the function and therefore the interests as expressed by the local authority, the

principle of correlation between levying and benefits connected to the functions exercised by the

local authority follows (as. art. 2 of the legislative decree mentions)82. As shown, the correlation

between the levy and the benefit does not necessarily imply a dispensation from the principle of

contribution capacity. The principle of correlation however, tends to be linked also to the

functions of the institutions according to the criterion of correspondence between financial and

administrative responsibility ( as art. 2, second paragraph, letter p). The proximity of the local

authorities to the needs of citizens cannot be ignored making it possible for local levies to more

adequately satisfy the conditions of the correlation83. In this context, food taxes can play an

important role considering their capacity to satisfy both the principles of constraint and of benefit

not only because included in the Regional functions (primarily health but also possibly

agriculture), but also because of the possibility of allocating the revenue for interventions on

information, education or health care promoting a healthy lifestyle. The possibility of

80 For a detailed analysis cf. E. BUOSO, Concorso di competenze, clausole di prevalenza e competenze prevalenti , in Le

regioni, n. 1/2008, from p. 61; and also, R. BIN, I criteri di individuazione delle materie, in the Report of the Meeting “Le

prospettive della legislazione regionale”, Milano 26-27.01.206, in Le regioni, 2006 from p. 889. 81 M.C. FREGNI, Riforma del Titolo V della Costituzione e federalismo fiscale, in Rass. Trib., 2005, 3, from p. 684; G.

VITALETTI, Il sistema tributario nel contesto federalista: le proposte dell’Alta Commissione, in Riv. dir. fin. e sc. fin., 2006, 1, p.

74, 82 Cf. A. Parlato, in Atti del convegno di Palermo, Palermo 2010, p. 116. 83 E. CARUSO, A. FONTANA, F. PETRINA, L. RICCI, Sintesi dei principali documenti prodotti dall’Alta Commissione di studio

per la definizione dei meccanismi strutturali del Federalismo Fiscale, in Riv. Dir. Finanz. e sc. fin., 2006, 1, p. 15 agree with this concept. Having an opposite point of view is E. GIARDINA, Il sistema tributario nel contesto federalista: le proposte dell’Alta

Commissione. Un commento, ibidem, 2006, 1, p. 88.

introducing regional taxes (purpose taxes), is recognized by law, delegating the Regions and

other local authorities in order to better appreciate this levy system. In more detail art . 7 ,

paragraph 1, letter b ), number 3 ) of Law no. 42/2009 and art. 38 of the Implementation Act no.

68/2011 stipulates that the Regions, with their own laws, can establish their own purpose taxes

with regards to conditions not already covered by State revenue (to date no national food taxes

are present). Article 12, paragraph 1, letter c) of Law no. 42/200984

and art. 20 of the

aforementioned Legislative Decree no. 68/2011, in fact, allow the Provinces to also regulate one

or more taxes "in reference to specific institutional goals"85

. The introduction of these purpose

taxes remains entrusted to the primary regulatory provisions of the State or the Regions86

, in

accordance with art. 23 of the Italian Constitution; the Provinces will have the power to establish

them and apply them, by virtue of special regulation.

7. Conclusions

The philosopher of Swedish origin A.J. Carlson defined obesity in 1942 as an "offensive luxury"

that the State must limit and counteract by any means. Presently, in times of a public finance

crisis, the fight against overweight is relevant especially for the substantial savings on health

care costs. The introduction of a fat tax or, in general, tax increases on non-meritorious

consumption, could produce a dual effect: on the one hand, the State would have financial

84 F. OSCULATI, L’ICI. Quando si dice federalismo, available on www.nelmerito.com , 21st May 2008. 85 Cf. art. 12, comma 1, letter e) Law 42/2009. In the legal doctrine see L. ANTONINI, Federalismo fiscale: la manovrabilità dei tributi propri, disponibile on www.astrid-online.it , 2009; L. ANTONINI, Sussidiarietà verticale e orizzontale nelle prospettive

di sviluppo della Legge n. 42 del 2009, in IRER, Sussidiarietà fiscale e orizzontale: profili fiscali , Milano, 2010, p.104; A.

D’AURO, La partecipazione dei Comuni all’accertamento dei tributi erariali , Rimini, 2010, p. 30. On the vagueness of the

statement see G. VEZZOSO, Il federalismo fiscale: dalle innovazioni costituzionali del 2001 al disegno Calderoli , in Dir. prat. Trib., 2008, 5, p. 890; M. VANNI, Riflessioni in tema di federalismo fiscale, responsabilità politica e tetti massimi di incremento

da parte dello Stato, in Le istituzioni del Federalismo, 2006, 5, p. 536. See V. FERRI, L’imposta di scopo a favore dei comuni

secondo la finanziaria 2007: un’analisi economica, in La Finanza Locale, 2007, 7-8, 43. C. BURATTI, Fisco federale. Proposte

per l’Italia, in Società italiana di economia pubblica, Dipartimento di economia pubblica e territoriale, Working paper No. 459, October 2005, pp. 41-42. 86 Cf. art. 12, comma 1, lettera g) . According to E. FAZZINI, I profili tributari, in S. LORENZI – A. PETRETTO (Ed.), Riforma

costituzionale e federalismo fiscale, Firenze, 2004,p. 37.

funding to be allocated for information campaigns on the risks of being overweight87

, on the

other it would discourage the consumption of products potentially harmful to human health,

achieving savings in health care costs. It is, however, evident that a serious policy to combat

obesity should not only be present at local or national level, but must expand at European Union

level and in all developed countries in order to promote responsible choices and informed

decisions.

87 See G. BRUNELLO – M. DE PAOLA – G. LABARTINO, A chi fa bene la frutta a scuola?, available on www.lavoce.info ,

11th May 2012.