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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.