As is clear from our endorsement of the open letter to National Treasury from the Public Health Community of South Africa on 21 April 2016,1 SECTION27 supports National Treasury and the National Department of Health in its efforts to reduce sugar consumption, including through levying an SSB tax.
As a public interest law centre that seeks to influence, develop and use the law to protect, promote and advance human rights, in this submission we draw attention to the constitutional rights and obligations at issue, including the obligation to take reasonable legislative and other measures to realise rights, and the constitutional requirements for policy making. We do so in order appropriately to frame the SSB tax and to encourage Treasury to comply with these requirements and thereby to ensure that the manner in which the SSB tax is brought into law and implemented is not only lawful but addresses some of the shortfalls of and concerns about such taxes that have arisen around the world and are arising in South Africa.
In summary, our view is as follows. Overweight, obesity and related ill health are serious health problems2 and the need to tackle them is obvious. They are also largely preventable. The cost incurred by the health system as a result of these health problems is significant and has been partially documented.3 The state has an obligation to ensure access to health care services, to an environment that is not harmful to health and to basic nutrition for children. Decreasing the cost of treating preventable illness through taxing a causal factor to prevent that illness is a measure available to the state progressively to realise these rights. Use of taxation as such a measure where there is evidence of its effectiveness, an assessment of unintended consequences, the principles of cooperative government have been complied with and after a public participation process is in line with the Constitution. It is also in line with the WHO Global Action Plan on non-communicable diseases.4 We therefore support Treasury and the Department of Health in this intervention.