US Policies That Define Foods for Junk Food Taxes, 1991–2021

Abstract

Policy Points.

• Suboptimal diet is a leading cause of mortality and morbidity in the United States.

• Excise taxes on junk food are not widely utilized in the United States. The development of a workable definition of the food to be taxed is a substantial barrier to implementation.

• Three decades of legislative and regulatory definitions of food for taxes and related purposes provide insight into methods to characterize food to advance new policies. Defining policies through Product Categories combined with Nutrients or Processing may be a method to identify foods for health‐related goals.

Context

Suboptimal diet is a substantial contributor to weight gain, cardiometabolic diseases, and certain cancers. Junk food taxes can raise the price of the taxed product to reduce consumption and the revenue can be used to invest in low‐resource communities. Taxes on junk food are administratively and legally feasible but no definition of “junk food” has been established.

Methods

To identify legislative and regulatory definitions characterizing food for tax and other related purposes, this research used Lexis+ and the NOURISHING policy database to identify federal, state, territorial, and Washington DC statutes, regulations, and bills (collectively denoted as “policies”) defining and characterizing food for tax and related policies, 1991–2021.

Findings

This research identified and evaluated 47 unique laws and bills that defined food through one or more of the following criteria: Product Category (20 definitions), Processing (4 definitions), Product intertwined with Processing (19 definitions), Place (12 definitions), Nutrients (9 definitions), and Serving Size (7 definitions). Of the 47 policies, 26 used more than one criterion to define food categories, especially those with nutrition‐related goals. Policy goals included taxing foods (snack, healthy, unhealthy, or processed foods), exempting foods from taxation (snack, healthy, unhealthy, or unprocessed foods), exempting homemade or farm‐made foods from state and local retail regulations, and supporting federal nutrition assistance objectives. Policies based on Product Categories alone differentiated between necessity/staple foods on the one hand and nonnecessity/nonstaple foods on the other.

Conclusions

In order to specifically identify unhealthy food, policies commonly included a combination of Product Category, Processing, and/or Nutrient criteria. Explanations for repealed state sales tax laws on snack foods identified retailers’ difficulty pinpointing which specific foods were subject to the tax as a barrier to implementation. An excise tax assessed on manufacturers or distributors of junk food is a method to overcome this barrier and may be warranted.

Suboptimal diet is a substantial contributor to weight gain; cardiometabolic diseases, like coronary heart disease, stroke, and type 2 diabetes; and certain cancers. ¹ , ² Among different aspects of diet, the category of “junk food” is typically used to describe foods including savory/salty snacks, sweet snacks, and desserts with low nutritional value. ³ , ⁴ Junk food consumption is linked to adverse health outcomes and has been increasing over the last two decades for adults ³ and children, ⁴ making up 15% of all calories consumed in the United States. ⁵ Thus, strategies to reduce junk food consumption have been identified as a policy priority to improve health.

The World Health Organization and other public health experts advocate for excise taxes on sugar‐sweetened beverages (SSBs) and junk food, both to raise the price of the taxed products to reduce consumption and use the revenue to invest in low‐resource communities. ⁶ , ⁷ , ⁸ Beyond the efficacy of the approach, experts note that taxes are an appropriate tool for addressing the negative externality that consumption of junk foods imposes on society through increased health care costs. ⁹ , ¹⁰ , ¹¹

However, although SSB taxes are relatively common—now enacted in dozens of nations globally and several US localities with a general consensus on how to identify the taxed product (through added caloric sweetener)—a primary barrier to taxing junk food has been the complexity in defining and classifying the foods to be taxed. ¹² , ¹³ , ¹⁴ , ¹⁵ , ¹⁶ For example, in 2011, Denmark introduced a tax on saturated fat, which was criticized as taxing staple foods considered part of a healthy diet (e.g., milk and cheese), as well as for lack of scientific concerns about substitutions and designations of saturated fat as inherently unhealthy regardless of its types and food sources. ¹⁷ , ¹⁸ Based on these criticisms and major opposition by businesses and consumers, Denmark repealed this tax in 2012. ¹⁹

In contrast, in 2011, Hungary imposed the Public Health Product Tax, which defines the foods subject to the tax based on specific food categories (soft drinks, candy, salty snacks, condiments, fruit jams) combined with nutrient cutpoints (primarily for sugar and salt). ⁸ The tax is assessed on manufacturers (or importers) of these foods chosen based on health considerations. An evaluation of Hungary's tax concluded that consumption of taxed products decreased, the tax resulted in significant revenue for the government, manufacturers reformulated products to reduce sugar and salt, and the population was more aware of healthy diets. ⁸

In comparison to Hungary's tax predominantly on junk food, the Mexican legislature passed a tax on foods described as “nonstaple” or “nonessential,” depending on the translation. The Mexican law, enacted in December 2013, assesses an excise tax on businesses along the supply chain of snacks, sweets, nut butters, and cereal‐based prepared products that additionally meet a calorie threshold. ²⁰ The definition was created without the input of the Ministry of Health. A posttax evaluation suggested significant tax revenue and decreased purchase of the taxed food nationally. ²⁰

In the United States, sales taxes are administered at the point‐of‐sale as a percent of the sales price of taxed products (or services) and the revenue goes into the general treasury of the taxing government. Excise taxes can be assessed on manufacturers or distributors of products before the product reaches the retail establishment or on the retail business (e.g., a “business privilege tax”) and the revenue can be earmarked for a particular purpose related to the tax. For all such taxes, classifications made by the taxing government are subject to the most deferential standard of legal review—rational basis review—meaning the relationship between the classification and its goal cannot be so attenuated as to render the distinction between taxed and nontaxed products arbitrary or irrational. ²¹ This does not present a genuine barrier to implementing a junk food tax based on rational definitions as courts are highly deferential to reasonable tax scheme classifications. ²² Nonetheless, legal precedent counsels government to ensure the definition is rational.

Although a US federal excise tax on junk food is legally and administratively feasible, ¹³ junk or snack food taxes to date have only been initiated at the state level (including by tribal governments and the District of Columbia [DC]) and typically assessed as low‐level sales taxes for revenue production goals on specific “snack food” products (e.g., chips, pretzels, nuts) that are not necessarily unhealthy. ¹⁶ This follows from the common taxing framework in the majority of states that exempts grocery food items from state sales taxes while sometimes also excluding candy or soda from the definition of grocery foods, rendering candy and soda subject to sales taxes in about half of the states. ²³ The rationale for excluding most food from sales tax is valid concerns over the regressivity of taxing necessities, whereas soda and candy are excluded because these are both recognized as nonnecessities. ²³

Thus, legal and administrative routes have been established for a federal excise tax on junk food, whereas precedent exists across states for taxing certain nonnecessity food items through sales taxes. Yet, meaningful junk food taxes like the one in Hungary are not commonly implemented. Potential political and industry challenges are evident and important to consider; however, a less recognized and more practical barrier is the absence of any US or international consensus on a definition for characterizing “junk food” for purposes of a tax (or other regulatory purpose) that can be adopted by governments. ¹⁴ , ¹⁵

Previous work suggests several methods could be used to define “junk food” for taxation purposes, including by broad product categories (e.g., chips, candy), ¹³ processing levels ²⁴ (i.e., ultraprocessed food as categorized by the NOVA Food Classification System ²⁵ ), nutrient contents (e.g., high in added sugar, sodium), ¹³ or nutrient profiling (e.g., Nutri‐Score, ²⁶ Health Star Rating, ²⁷ Food Compass ²⁸ ). However, no research to date has evaluated existing practices for how the US federal and state governments have defined and categorized food in legislation or regulation for food tax purposes. An understanding of the extent, similarities, and differences of existing legal definitions of different foods at the state and federal levels would be highly informative for state or national actions that might include a junk food tax. To address these important questions, the current study sought to evaluate the legislative and regulatory definitions categorizing foods for tax and other related regulatory purposes to identify methods to clearly define food for a junk food tax to support health, withstand criticism if contested, and increase administrative feasibility in the United States.

Methods

This research was conducted to evaluate federal, state, territorial, and DC definitions and categorizations of food for purposes of taxes and related regulations for food sold to consumers through retail channels. In January 2022 to May 2022, we researched state and territorial legislation, including bills proposed and statutes passed, for the years 1991 through 2021 in the 50 states, the four territories available on Lexis+ (Guam, Northern Mariana Islands, Puerto Rico, and the US Virgin Islands) and Washington DC, using keywords “tax” and “taxes” in combination with keywords: “food,” “junk,” “snack,” “processed,” “processing,” “ultra‐processed” and “ultraprocessed.”

The goal was to identify methods used to define or categorize food so we included bills and statutes that contained an express definition of food for other retail sale regulatory purposes (e.g., farmers’ market sales for federal nutrition assistance programs) if identified through the search. Because we were interested in the definitions related to food that would be subject to a tax for food sold in the retail environment only, we excluded definitions that pertained solely to foods prepared in restaurants, schools, or residential care facilities, or definitions solely related to genetic engineering or perishability. For states with existing statutes, we also researched any relevant agency regulations using the same keywords because regulatory agencies are often tasked with creating regulations intended to fill in details of legislation using the regulatory agencies’ expertise.

In order to capture US tribal government laws, we used the World Cancer Research Fund's NOURISHING policy database and reviewed all laws designated “health‐related food taxes” in the database. ²⁹

In order to identify statutes, regulations, and bills (collectively, “policies”) at the federal level, using Lexis+ we researched statutes and regulations (collectively, “laws”) and bills using keywords “tax” and “taxes” in combination with keywords: “food,” “junk,” “snack,” “processed food,” “processed snacks,” “ultra‐processed,” and “ultraprocessed”; the inclusion of the terms “processed” and “processing” on its own resulted in thousands of irrelevant federal policy results. We followed the same inclusion and exclusion criteria used for state and territorial bills and laws.

For each relevant identified policy, data extracted by one investigator (JLP) included the jurisdiction; and law or bill number and year of enactment for statutes and proposal for bills; regulations are current as of December 31, 2021; the purpose of the policy as it related to the definition (as opposed to revenue production for example); the definition of the food category; and any exclusions from the definition of “food.” For laws related to taxation, the type of tax was recorded; the same was not possible for bills because bills are not consistently explicit.

Results

Policy Results

A total of 2,296 potentially pertinent state, territorial, and tribal statutes and bills; one state regulation; 109 federal statutes and bills; and 34 federal regulations were identified. Of these, 68 policies were relevant and included in this analysis. Excluding duplicate policies, a total of 47 unique laws and bills defining food categories were identified and evaluated. In addition, a DC Register entry relevant to a DC law was identified through the search and is described below but not in the tables because it is not a bill, statute or regulation.

As set forth in Table 1, we identified six state statutes either taxing, or exempting from taxation, snack foods and one state regulation by the state treasury with identical language to the law. We further identified 31 unique state bills (and 19 duplicative bills) either taxing or exempting from taxation (including tax credits) snack or junk foods (Table 2). This research also identified policies to categorize food for nontax retail purposes, including one state statute exempting the sale of homemade food from state food requirements (e.g., licensure, inspection, certification), four federal regulations categorizing food for federal nutrition assistance programs with five unique definitions (Table 3), three unique state bills (and one duplicative state bill) categorizing food for similar purposes, and two federal bills establishing nutrition guidelines for specific retail locations (Table 4).

Table 1.

State and Federal Food Tax Laws, 1991–2021

Jurisdiction, Bill/Law, Year	Purpose	Processing	Product Category	Place	Serving size	Nutrients	Exceptions/ Exclusions
California Law 1991 Cal Rev & Tax Code §6359 Enacted on June 30, 1991; repealed by Proposition 163, approved by the voters on November 3, 1992	exempt snack foods from definition of “food,” making them subject to a sales and use tax	sold in a condition suitable for consumption “without further processing” such as cooking, heating, or thawing	cookies, crackers, potato chips, snack cakes or pies, corn or tortilla chips, pretzels, granola snacks, popped popcorn, fabricated chips, and fabricated snacks				excluding soda, graham, and arrowroot crackers
Washington, DC Law 1993 D.C. ALS 11; 1993 D.C. Stat 11; 1993 D.C. Law 11; 1993 D.C. Act 39 June 15, 1993; repealed in 2000 by 2000 D.C. Code §47‐2001	tax snack food (sales tax)	“without further processing”	snack food e.g., chips, pretzels, popcorn, fabricated snacks, baked goods, nuts, seeds, marshmallows
Maine Law 36 M.R.S. § 1752 Enacted 1991; repealed; effective 2000	tax snack food (sales and use tax)	“without further preparation” except combining with liquid	snack food e.g., ice cream, chips, cheese sticks/ puffs, jerky, marshmallows fruit snacks, roasted nuts, doughnuts				Grocery staples, food ordinarily consumed for human nourishment, e.g., bread, milk, eggs, vegetables
Maryland Law Md. Tax‐General Code Ann. §11‐206 This provision was enacted 1996, was effective July 1, 1997; corn chips added 2001 Md. SB 196, which was enacted, April 10, 2001 Code of Maryland Register 03.06.01.05	exclude snack food sold in vending machines from sales and use tax		potato chips and sticks; pretzels; cheese puffs and curls; pork rinds; extruded pretzels and chips; popped popcorn; nuts and edible seeds; or snack mixtures 2001: added corn chips	vending machine
*Navajo Nation Law Healthy Diné Nation Act of 2014 24 N.N.C. §§ 1001‐1024	tax minimal‐to‐no nutritious value foods (excise tax on gross receipts; revenue earmarked) on sweetened beverages and prepackaged and nonpackaged snacks to address diabetes, overweight and obesity	“stripped of essential nutrients”	sweetened beverages, sweets (e.g., candy, frozen desserts, pastries, pudding and gelatin‐based desserts, desserts, baked and fried goods), chips and crisps (e.g., potato chips, tortilla chips, pita chips, cheese puffs)			“high in salt, saturated fat, and sugar”
Texas Law Tex. Tax Code § 151.314 (2013 TX S.B. 1151 Enacted, amendment added “snack items.” 2015 amendment added additional food to the list	exempt snack items from tax by including snack items in the definition of “food” which is not subject to the sales, use, or excise taxes; however, if snack items are sold through a vending machine or individual‐sized portions, these are not exempt from taxation		breakfast/ granola/ sports/nutrition/ protein/ yogurt bars, snack mix/ trail mix, chips, crackers, popcorn, pretzels, corn nuts; added 2015: pork rinds, or corn nuts; sunflower seeds or pumpkin seeds; ice cream, sherbet, or frozen yogurt; ice pops, juice pops, sorbet, or other frozen fruit items containing not more than 50% fruit juice by volume	snack foods listed are subject to taxation if the item is sold through vending machines	snack foods listed are subject to taxation if the item is sold in individual‐sized portions. An individual‐sized portion is a portion that: is labeled as having not more than one serving; or contains less than 2.5 ounces		Pine nuts, candy‐coated nuts, candy, soft drinks

^*Law explicitly targeting unhealthy food.

Table 2.

State and Federal Food Tax Bills, 1991–2021

Jurisdiction, Bill/Law, Year	Purpose	Processing	Product Category	Place	Serving size	Nutrients	Exceptions/ Exclusions
Alabama bill 2003 AL H.B. 50A	Alabama Soft Drink and Assorted Snack Food Tax Act's purpose was to tax snack food		potato chips and related products, snack crackers, candy products and other foods commonly used as snacks
*Arkansas bill 2003 AR H.B. 2282	“Arkansas Junk Food Tax Act” purpose was to tax foods of minimal nutritional value					artificially sweetened foods and foods that per 100 calories: provide <20% RDI of 20 possible vitamins or minerals; food that contain <4 grams of protein per serving	beverages; fresh, frozen, or dried fruits/vegetables; canned vegetables; food containing live and active yogurt cultures
California bill 1991 CA S.B. 177	make snack foods exempt from tax by including them in the definition of “food”	sold in a condition suitable for consumption “without further processing”	snack foods: cookies, crackers, potato chips, snack cakes or pies, corn or tortilla chips, pretzels, granola snacks, popped popcorn, fabricated chips, and fabricated snacks				soda, graham, and arrowroot crackers
California bills 1999 CA A.B. 890 1999 CA A.B. 2824 2001 CA A.B. 893 2001 CA A.B. 1427 2007 CA A.B. 728	exempt from tax snack foods (and candy, gum, bottled water) sold through vending machine (all food sold through vending machines is subject to a sales and use tax in California (Cal Rev & tax Code §6359))	“without further processing”	snack foods e.g., cookies, crackers, chips, pretzels, granola, fabricated snacks nuts, seeds, dried fruit	vending machine
*California bill 2017 A.B. 274	exempt processed snack food from definition of “food” exempt from tax (to tax it along with candy and confectionary)	food product that is ready for consumption without further preparation, not including toasting				>200 calories per serving; >35% of its calories are from fat per serving; >10% of its total calories are from saturated fat per serving; >35% of its total weight shall be composed of sugar per serving; >0 trans‐fat; or > 200 mg sodium per serving	frozen products; fresh or dried fruit or vegetables without added sugar; dairy and dairy substitutes; nuts and seeds; nut butters; canned products; bread; meat and meat substitute products; prepared food; beverages; and “Healthy Choice Snack”: contains less than or equal to the nutrients listed
California bill 2017 CA A.C.A. 2	provides lists of products for 2017 CA A.B. 274 (above) Exempt Processed snack food from definition of “food” exemption from tax to address obesity, diabetes, hypertension, and tooth decay		“snack foods” examples included cookies and pretzels				“non‐snack foods” examples included graham crackers and peanuts
Hawaii bill 2009 HI S.B. 1089	remove tax from nonprocessed fresh food	no preservatives or additives					bread, rice, milk always qualify as nonprocessed fresh food
*Hawaii bill 2009 HI S.B. 2239	tax snack foods to address weight gain, obesity, and unhealthy eating and drinking	nonnutritional additives, preservatives, or ingredients that are processed and unnatural	chips, pretzels, bars, candy, ice cream, jerky, pork rinds, cookies		packaged or designed to be portable	includes significant amounts of sweeteners that have little to no nutritional value	excludes sweetened beverages; fresh fruit and vegetables, salads
Iowa bill 2009 IA S.S.B. 3236	tax credit for grocers who contract with local farmers to buy “local food and farm products”	unprocessed or minimally processed, including washed, packaged, cut, cleaned, ground	fruit, vegetable, meat grain	farm/local products
Maine bill 1997 ME S.B. 279	repeal snack food tax	“without further preparation”	snack food e.g., ice cream, chips, fruit snacks, pork rinds, pretzels, cheese sticks/puffs, marshmallows, pies, roasted nuts				excludes confections gum, ice‐cream novelties, and frozen confections
Maine bill 1997 ME H.B. 254	amend definition “snack food” for tax	“without further preparation”	snack food e.g., ice cream, chips, fruit snacks, pork rinds, pretzels, cheese sticks/puffs, marshmallows, pies; adds breakfast bars, crackers, croissants, roasted nuts				breakfast drink meals, liquid meal replacement, bagels, cheese, cheese food products unless individual size
Maine bills 2007 ME H.B. 1139 2007 ME H.B. 1085 2007 ME H.B. 649 2007 ME H.B. 1280	reinstitute snack food tax	“without further preparation”	snack food e.g., ice cream, chips, fruit snacks, pork rinds, pretzels, cheese sticks/puffs, marshmallows, pies, soft drinks, roasted nuts
Maryland bills 2012 MD H.B. 455 2013 MD H.B. 1214 2015 MD H.B. 964 2020 MD H.B. 1145	repeal exemption for snack food from tax in order to tax snack food		potato chips/ sticks, pretzels, cheese puffs / curls, pork rinds, extruded pretzels and chips, popped popcorn, snack mixture
*Massachusetts bill 2009 MA H.B. 2701	tax nonnutritious snack food; minimally‐nutritious snack food to improve access to fresh, healthy, local food and prevent obesity and chronic disease					200 calories/ portion; ≤35% total calories from fat; <10% total calories from saturated fat; 0 trans‐fat; ≤35% calories from sugar; ≤200 mg sodium
*Massachusetts bill 2019 MA H.B. 2528	remove processed foods from tax exemption. Provide funding for “whole natural nature food” to “encourage whole natural nature food selection, cooking, and eating” and “change our current processed food system into an honest, whole food–based system”	foods not exempt from taxation: those subject to “milling, cutting, chopping, heating, pasteurizing, blanching, cooking, canning, freezing, drying, dehydrating, mixing, packaging, added additives, in particular, chemicals that alter the food from its natural nature state; provide funding for product categories listed without any processing or genetic modification	provide funding for plant foods including grains, vegetables, beans, herbs, nuts, seeds, fruit (without any processing or genetic modification)
Minnesota bills 2013 MN H.B. 1249 2013 MN S.B. 1205	tax snack food		licorice; cookies, cakes, pies, donuts, and other pastries; ice cream novelties		≤8 ounces of potato chips and sticks; corn chips; pretzels; cheese puffs and curls; pork rinds; extruded pretzels and chips; popped popcorn; nuts; seeds
New Mexico bill 2010 NM H.B. 250	eliminate tax deduction for snack food		e.g., soft drinks, candy, gum, chips, cheese puffs, pork rinds, popped pop corn
*New Mexico bill 2017 NM S.B. 416	eliminate tax deduction for minimal to no nutritional value food	stripped of essential nutrients; baked and fried	baked and fried food, candy, sweets, frozen desserts, pastries, pudding, gelatin, chips, sweetened beverage			high in salt, saturated fat, and sugar
North Carolina bill 2015 NC H.B. 455	tax credit for grocer that contracts with producer for the purchase of local food and farm products for sale in a food desert zone	unprocessed or minimally processed: washing and packaging (for fruits and vegetables), cutting (meats), cleaning and grounding (grains)	fruits, vegetables, meat, grain	farm products
New York bills 2003 NY A.B. 9145 2005 NY A.B. 5665 2007 NY A.B. 6376 2009 NY A.B. 2455 2011 NY A.B. 843 2013 NY A.B. 2982	tax sweets and snacks		USDA database for sweets and snacks
Nebraska bills 1999 NE L.B. 1444 2001 NE L.B. 554	tax snack food		candy gum, soft drinks		≤ 8 ounces e.g., chips, cheese sticks or puffs, pork rinds, cookies, pies, nuts, seeds
Nebraska bill 2003 NE L.B. 57	tax junk food, snack food		chips (including protonate, corn, flour) popcorn, pretzels
Nebraska bill 2005 NE L.B. 628	tax on snack food		soft drinks, candy, gum		≤ 8 ounces e.g., chips, cheese puffs, pork rinds, popped popcorn, cakes, pies
Oregon bill 1993 Ore. HB 2500	tax snack foods by excluding it from the definition of food (which is not subject to a sales and use tax)	“sold in a condition suitable for consumption without further processing”	snack foods: cookies, crackers, potato chips, snack cakes or pies, corn or tortilla chips, pretzels, granola snacks, popped popcorn, fabricated chips and fabricated snacks		granola not sold in bulk; individual‐sized cakes, pies		soda, graham, and arrowroot crackers; granola cereals, trail mixes; doughnuts, breads, pastry and other bakery products; sandwich meat (sliced or unsliced) nuts, seeds, dried fruit, beef jerky, dried meat products, natural pork skins, hot dogs, franks, wieners, sausages, canned meat products; nuts, nut meats, seeds, dried fruit snacks
Texas bills 2004 TX H.B. 55D 2005 TX H.B. 3 2005 TX H.B. 3324 2005 TX H.B. 1105	tax snack food; one bill also calls it “discretionary food and drink,” not “a major component of a well‐balanced meal”	“without further preparation,”	snack foods and includes bakery items, chips, candy, pretzels; popcorn, roasted nuts
Texas bill 2013 TX H.B. 2504	amend tax exemption to remove snack items from tax exemption				individual serving size or one serving or <3 ounces breakfast/ granola/sports/ protein/yogurt bars, trail mix, chips, crackers, popcorn, pretzels, nuts
Texas bill 2005 TX H.B. 3283	impose tax on sweets or snacks to decrease consumption of minimally nutritive food		USDA database for sweets and snacks
Vermont bill 2003 VT H.B. 462	defined snack food relating to taxes and SNAP		e.g., candy, soft drinks, corn chips, potato chips, vegetable chips, nuts, dried fruit, fruit in sweetened syrup
Vermont bill 2009 VT H.B. 392	tax snack food; “high caloric food with low nutritional value”		e.g., candy, soft drinks, fruit drinks, chips, pork rinds, cheese puffs, granola, ice cream, pudding, nuts, dried fruit, fruit in sweetened syrup
Vermont bill 1995 VT H.B. 321	tax snack food		e.g., candy, soft drinks, fruit drinks, chips, pork rinds, cheese puffs, granola; ice cream, pudding; nuts
*Washington bill 2001 WA S.B. 6770	tax junk food; “empty calorie foods” that are partly to blame for the diets that promote poor health		candy, carbonated beverage			containing little or no nutritional value; high sugar, fats, cholesterol

Abbreviation: SNAP, Supplemental Nutrition Assistance Program; USDA, US Department of Agriculture.

^*Bills explicitly targeting unhealthy food.

Table 3.

State and Federal Laws Categorizing Food for Nontax Food Retail Purposes, 1991–2021

Jurisdiction, Law, Regulation, Year	Purpose	Processing	Product Category	Place	Serving size	Nutrients	Exceptions/ Exclusions
Arkansas law A.C.A. §§20‐57‐501 – 20‐57‐507 Enacted, April 29, 2021	exempt the sale of homemade food and drinks from state food requirements (state licensure, inspection, certification, and packaging and labeling requirements) and preempt local prohibitions and regulations of the production/sale of homemade food or drink products	cooking, baking, drying, mixing, cutting, fermenting, preserving, dehydrating, growing, and raising		homemade			food subject to time/temperature control for safety: animal food that is raw or heat‐treated; food of plant origin that is heat‐treated or consists of raw seed sprouts; cut leafy greens; cut tomatoes or mixtures of cut tomatoes; and garlic‐in‐oil mixtures
Federal regulation 7 CFR 271.2 (USDA)	define staple food for the retail sale of food for the Food Stamp Act of 1977 (SNAP) a		four categories of staple food: meat, poultry, or fish (and plant‐based versions); bread or cereals; vegetables or fruits; and dairy products (and plant‐based versions)
Federal regulation 7 CFR 271.2 (USDA)	define accessory food items for the retail sale of food for the Food Stamp Act of 1977 (SNAP) a		accessory food items include foods that are generally considered snack foods or desserts such as, but not limited to, chips, ice cream, crackers, cupcakes, cookies, popcorn, pastries, and candy, and other food items that complement or supplement meals, such as, but not limited to, coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt, and sugar
Federal regulation 7 CFR 248.2 (USDA)	eligible foods for the WIC FMNP	eligible foods include fresh, nutritious, unprepared, locally grown foods in the product categories and may not be processed or prepared beyond their natural state except for usual harvesting and cleaning processes	fruits, vegetables, and herbs for human consumption	farmers’ markets			honey, maple syrup, cider, nuts, seeds, eggs, meat, cheese, and seafood are examples of foods not eligible for purposes of the FMNP
Federal regulation 7 CFR 249.2 (USDA)	eligible foods for the SFMNP	eligible foods include fresh, nutritious, unprepared, locally grown foods in the product categories and may not be processed or prepared beyond their natural state except for usual harvesting and cleaning processes	fruits, vegetables, honey, and herbs for human consumption	farmers’ markets			dried fruits or vegetables, such as prunes (dried plums), raisins (dried grapes), sun‐dried tomatoes, or dried chili peppers; fruit or vegetable plants, potted or dried herbs, wild rice, nuts of any kind (even raw), maple syrup, cider, seeds, eggs, meat, cheese, and seafood are not eligible foods for purposes of the SFMNP

Abbreviations: FMNP, Farmers Market Nutrition Program; SFMNP, Senior Farmers’ Market Nutrition Program; SNAP, Supplemental Nutrition Assistance Program; USDA, US Department of Agriculture; WIC, Supplemental Nutrition Assistance Program for Women Infants and Children.

^a SNAP is a federal program administered jointly by the USDA and states; however, the federal government defines food for purposes of qualifying as a SNAP‐approved retailer and state governments cannot change the definition without a waiver from the USDA. Per USDA regulation, SNAP‐approved retailers must stock a certain number of staple foods and within the staple food category, a certain number of perishable foods (or qualify by >50% of gross sales being in a staple food category like butcher shops). Staple foods do not include prepared foods, heated foods, or accessory foods. SNAP retailers also sell these foods that do not factor into the qualification as a SNAP‐approved retailer. See USDA. Store Eligibility Requirements. https://www.fns.usda.gov/snap/retailer/eligible.

Table 4.

State and Federal Bills Categorizing Food for Nontax Food Retail Purposes, 1991–2021

Jurisdiction, Bill, Year	Purpose	Processing	Product Category	Place	Serving size	Nutrients	Exceptions/ Exclusions
Idaho bill (Senate Joint Memorial Resolution) 2013 ID S.J.M. 102	prohibit purchase of “unhealthy food items” with SNAP		energy drinks, soft drink, cookies, candy, chips			“other ‘junk food’ with no nutritional value”
Iowa bill 2021 IA H.B. 319	exempt farm homemade food from state/local food requirements (e.g., license, permit, test)	raw or processed includes but is not limited to heating, drying, curing, mixing, grinding, churning, separating, extracting, slaughtering, cutting, fermenting, distilling, eviscerating, preserving, dehydrating, cooling, chilling, or freezing.	raw e.g., milk, eggs, nuts; processed e.g., pies, dairy, pickled fruit	farm, homemade
Tennessee bills 2021 TN S.B. 693 2021 TN H.B. 813	Tennessee Food Freedom Act; Homemade food free from state licensing, permitting, inspecting, packaging, and labeling laws; and preempts local laws prohibiting or regulating the production or sale of such foods	prepared by cooking, baking, drying, mixing, cutting, fermenting, preserving, dehydrating, growing, raising, or other processes		homemade food			Meat, poultry
Federal bill Healthy Communities through Helping to Offer Incentives and Choices to Everyone in Society Act of 2010, 111 H.R. 5209 (2010)	create USDA program to support the establishment and expansion of retail food stores offering affordable, nutritious foods in underserved communities		“affordable, nutritious foods” means fruits and vegetables, meat, fish, grains, dairy, and poultry.	underserved communities
Federal bill Healthy Lifestyles and Prevention America Act, 113 S. 39 (2013)	directing the Secretary of the Interior to submit to Congress a report that describes the state of food and beverage offerings for retail sale (and other locations) in the National Park System and ensure that there are adequate offerings of healthy food and beverages for all food concessioners in the National Park System.			parks		assessment of the nutritional quality of foods, including the approximate percentage of food and beverage offerings that reflect the most recent Dietary Guidelines for Americans; guidelines for concessioners to ensure the easy and plentiful availability of healthy snacks and beverages

Abbreviations: SNAP, Supplemental Nutrition Assistance Program; USDA, US Department of Agriculture.

Definition Results

Based on review of the definitions of foods for all relevant policies, we identified six main criteria for classification and definition of food categories for policy action:

• Product Category alone (20 definitions): policy based on lists of specific product categories or examples of foods covered by the definition (e.g., chips).

• Processing alone (4 definitions): policy based on specific processing methods (e.g., fermentation, inclusion of preservatives) not in relation to any specific food products.

• Product plus Processing (19 definitions): policy based on food product categories intertwined with processing (e.g., chips without further processing).

• Place (12 definitions): policy based on location of preparation (e.g., farms, “homemade”) or purchase (e.g., specific type of retailer: vending machines, farmers’ markets).

• Nutrients (9 definitions): policy based on reference to or thresholds of certain macronutrients, vitamins, minerals, food ingredients, and/or calories.

• Serving Size (7 definitions): policy based on serving size of relevant categories of foods (e.g., >8 ounces; portable).

More than half of policies utilized combinations of these criteria. Specifically, a total of 26 out of the 47 unique laws and bills defined food categories using more than one criterion of Processing, Product Category, Serving Size, or Nutrients, including five of the six tax laws, 18 of the 31 tax bills, two of five of the nontax laws, and two of the five nontax bills.

Policies Categorizing Food for Tax Purposes

Of the six tax‐related laws identified, three were still good law as of December 31, 2021, and three had been repealed (Table 1). A Navajo Nation law (passed in 2014), the only true “junk food” tax in effect, is an excise tax on businesses that sell “minimal‐to‐no nutritious value foods,” defined by the combination of a list of Product Categories (e.g., “sweets, desserts, chips”), Processing (“stripped of essential nutrients”), and Nutrients (“high in salt, saturated fat, and sugar”). ³⁰ A Maryland law (passed in 1997) combined Product Categories and Place to exclude from the state's sales tax specific snack foods defined by Product Categories (e.g., potato chips, pretzels, pork rinds, nuts) and (Place) sold through vending machines. A Texas law (2013) confirms its definition of food not subject to sales taxes in retail establishments includes specific snack foods defined by Product Categories (e.g., granola, chips, pretzels, ice cream, seeds), except the same list of snack foods are taxed if they are sold through vending machines (Place) or are sold in individual‐sized portions (Serving Size), thus, creating two cases in which these foods are taxed. Of note, like this Texas law, several proposed bills (e.g., Minnesota [2013], Nebraska [1991, 2001]) would have taxed snacks sold in small serving sizes.

Three of the tax laws were repealed, and all three of these taxed “snack foods.” Specifically, laws in California, DC, and Maine combined Product plus Processing, defining snack foods by listing specific Product Categories or examples of snack foods subject to the state sales tax, while also noting these categories must be ones that are not “subject to further” processing or preparation (Processing), seemingly to indicate the products included were only intended to be ready‐to‐eat snack foods. The 1991 Maine law and 1993 DC law were both repealed in 2000 by policymakers; and the 1991 California law was repealed in 1992 through a ballot measure approved by voters.

Language accompanying a Maine bill documented certain issues with the sales taxes on snack foods. A 1997 Maine bill that sought to amend the state's tax on snack food would have directed the state's taxing agency to reevaluate the definition with public input, including a focus on the “appropriateness of the definition, particularly regarding the types of foods that are generally considered major components of well‐balanced meals.” ³¹ Similarly, a 2000 DC Register entry explained that even though the district would lose an estimated $3.3 million a year in revenue by repealing the sales tax on snack foods, nonetheless the “tax is very hard for merchants to administer.” ³² Shedding further light on this issue, a 2017 California bill proposed to support a “processed snack” tax and noted that the state's taxing agency had already “compiled voluminous lists” of snack foods and non–snack foods to help retailers comply with the law. ³³ It noted, “[n]onetheless, retailers expressed significant difficulties with immediately determining food products subject to tax” and that there would be a particular problem in stores without electronic scanners at checkout. ³³

The bills identified shed further light on the legislatures’ definitional goals. Like the Navajo Nation law, several bills had an explicit focus on targeting unhealthy food; these bills defined “food” using multiple criteria, often including Product Categories, Processing, and/or Nutrients; these are denoted by asterisks in Tables 1 and 2. For example, bills described the foods subject to the tax as “foods of minimal nutritional value” and “junk food” (Arkansas), nonnutritious and minimally nutritious snack food (Massachusetts), and “processed snack food” (California); and all additionally set forth specific Nutrient criteria for the foods. Additional bills used multiple criteria to identify the food to be taxed. For example, a Hawaii bill would have taxed specific Product Categories of food that the bill described as having “non‐nutritional additives, preservatives, or ingredients that are processed and unnatural” (Processing), and according to Serving Size (“portable”) and Nutrients (“with added sweeteners that have little to no nutritional value”).

The DC and Maine laws and 10 state tax bills included nuts and sometimes seeds (without any qualifier such as sweetened or salted) in the definition of snack foods to be subject to a tax (Tables 1 and 2). Nuts and seeds have high levels of unsaturated fats and calories; however, recent science has documented links to improved health outcomes and dietary guidelines recommend consumption of nuts and seeds. ³⁴ Whether their inclusion in these laws and bills was due to the goal of uniformly taxing all “snack foods” as “non‐necessities” (i.e., agnostic to the healthfulness of the taxed food), or due to confusion on what types of snack foods are healthy or unhealthy, was not always clear. For example, Texas bills proposed in 2004 and 2005 that would have taxed nuts, classified all the foods to be taxed as “discretionary food and drink” and not “a major component of a well‐balanced meal,” seemingly focusing on the perceived role of nuts as a snack food in eating patterns rather than based on nutritional value. In another state, a 2009 Vermont bill taxed a list of foods, including nuts, which were designated as “high caloric food with low nutritional value.” The Vermont bill suggests the potential for disconnect between policymakers’ goals and the latest science, perhaps indicating confusion over the nutritional value of nuts.

One category of processed food products—processed meat—was included across multiple tax policy types. Pork rinds and/or meat jerky were included in bills and laws that taxed or excluded foods from taxation. For example, the Maine law taxed meat jerky as did a Hawaii bill (along with pork rinds), whereas an Oregon snack tax bill excluded meat jerky and processed meat (e.g., deli meat, sausages, canned meat) from the definition of snack foods to be taxed. Conversely, unprocessed or minimally processed meat were subject to tax credits (along with other unprocessed/minimally processed fruits, vegetables, and grains) in bills in Iowa and North Carolina. These two tax credit bills would have provided tax credits to grocers that contracted with producers of local food and farm products (with North Carolina also supporting sale of these unprocessed/minimally processed foods in “food deserts”).

Similar to the tax credit bills, other bills also focused on supporting unprocessed or healthier food. A Hawaii bill would have excluded from taxation nonprocessed fresh food (i.e., without preservatives or additives), which, by definition, also expressly included bread, rice, and milk in the bill. A Massachusetts bill would have removed processed foods (described as having “added additives, in particular, chemicals that alter the food from its natural nature state”) from the state's tax exemption and provide funding for “whole natural nature food” also described as “plant foods” without processing or genetic modification.

Policies Categorizing Food for Nontax Retail Purposes

This research identified four laws with five unique definitions (Table 3) and five unique bills (Table 4) that defined food for non–tax‐related food retail purposes. These definitions most commonly focused on supporting the retail sale of nutritious or unprocessed foods; in other words, the criteria in these definitions related to foods to be encouraged for purchase and consumption. The only state law in this group (Arkansas 2021) exempts, from state and local retail regulatory requirements (e.g., licensure, inspection), the sale of “homemade” food, defined using both Place (home) and Processing (food prepared through cooking, baking, drying, mixing, cutting, fermenting, preserving, dehydrating, growing, and raising). Two state bills proposed in Iowa and Tennessee had similar purposes, using Processing criteria (nonindustrial processes), with the Iowa bill also including farm‐made food, and with Product Categories as examples (e.g., milk, nuts, pies).

One US Department of Agriculture (USDA) regulation defined “accessory foods” for the Supplemental Nutrition Assistance Program (SNAP) using Product Category. This includes “foods that are generally considered snack foods or desserts” and provided examples including candy, chips, ice cream, and “other food items that complement or supplement meals,” with examples of coffee, soft drinks, condiments, and spices. This regulation differentiated between “accessory foods” (or nonnecessity foods) and “staple foods” (defined as meat/poultry/fish/plant substitutes, dairy/nondairy substitutes, fruits and vegetables, bread/cereal) for SNAP, the latter of which are “generally considered to be basic items of food that make up a significant portion of an individual's diet and are usually prepared at home and consumed as a major component of a meal.” ³⁵ An Idaho state resolution bill (2013) sought to prohibit the purchase of “unhealthy food items” with SNAP benefits, as defined by Product Categories (e.g., cookies, candy, chips) and Nutrients (“other ‘junk food’ with no nutritional value”).

Additional federal regulations defined food categories for federal food and nutrition programs. Two USDA regulations used a combination of Product Category and Processing definitions to designate foods eligible for federal farmers market nutrition programs (unprocessed fruits, vegetables, herbs) while also incorporating Place (farmers markets). Two federal bills sought to support the offering of nutritious food in retail establishments based on combining specific Places with other criteria: combining underserved communities (Place) with specific Product Categories: “affordable, nutritious foods” defined to mean fruits and vegetables, meat, fish, grains, dairy, and poultry (similar to the definition of staple foods for SNAP); and national parks (Place) with foods and beverages recommended by the Dietary Guidelines for Americans (Nutrients).

Discussion

This research reviewed and identified, for the first time to our knowledge, 47 unique policies where federal, state, or tribal governments defined categories of food for taxation or other related regulatory purposes. Goals included to tax foods (including snack, healthy, unhealthy, or processed foods); exempt foods from taxation (snack, healthy, unhealthy, or unprocessed foods); exempt homemade or farm‐made foods from state and local regulations; or help meet federal nutrition assistance objectives. More than half of these policies used combinations of two or three criteria, including Product Category, Processing, Place, Nutrients, and/or Serving Size. In general, policies targeting unhealthy junk food used a combination of Product Category, Processing, and/or Nutrients. In contrast, policies taxing “snack foods” without health considerations more often used Product Categories alone (and sometimes included healthy foods, such as nuts and seeds). Policies taxing small serving sizes may have been intended to avoid taxing “family‐sized” packaging used for sharing; nonetheless, this method is contrary to supporting smaller portions of unhealthy foods. Place, such as vending machines, farmers markets, or farms, was a common additional criterion across policy purposes. Federal nutrition program definitions generally focused on Product Category criteria, sometimes with additional Place and/or Processing criteria, to differentiate between staple/meal and nonmeal components and to support the purchase and consumption of fresh produce.

Across all policies, two themes emerged in the criteria to categorize and differentiate between food products. First, policies used Product Categories to help differentiate between necessity or staple foods on the one hand and nonnecessity/nonstaple foods on the other. For example, bread was explicitly excluded from four snack/junk food tax bills and was designated a staple food by a federal law for SNAP. The exclusion of staple food products is an important component of any junk food tax and must additionally take into consideration culturally relevant foods. ³⁶ Taxing staple food products increases concerns over hampering food security, regressive incidence of the tax, lack of healthy alternatives available in all communities, and questions over substitutes for taxed products that may undermine the intended health benefits of a tax. Lessons learned from the failed Denmark saturated fat tax that included staples like milk and cheese are important. Relatedly, the common differentiation between staple and nonstaple foods brings in interesting questions related to processed meats—all of which are associated with increased risk of cardiometabolic death and cancer, ¹ , ³⁷ —but some, such as deli meats, may be considered a staple food, whereas pork rinds and beef jerky are likely not.

Second, policies commonly added a combination of Processing and/or Nutrient criteria to further determine which products within these categories would be subject to or exempt from taxes and other regulation, aiming to differentiate food products based on healthfulness. Although the specific metrics varied, these generally favored products with a Nutrient threshold or lower levels of Processing and lower levels of additives. This two‐step approach is similar to Hungary's Public Health Product tax that had nutrition goals and utilizes Product Categories plus sugar and salt thresholds. ⁸ It is important that taxes with nutrition goals incorporating Nutrient criteria be based on scientific understanding of fats, added sugar and sodium (and not simply on calories) to not include healthy foods such as nuts and seeds. Using specific nutrient cutoff points may lead to greater product reformulation than other approaches—for better or worse. ³⁸ Modestly defined nutrient cutoffs may lead producers to reformulate products in minor ways to avoid taxation that hamper the possible health benefits of a tax; more inclusive taxation schemes based on nutrients of concern may leave food manufacturers with less incentive to reformulate if their products would still be subject to taxation—and could also increase the price consumers face for products that might otherwise be healthier substitutes.

Processing criteria generally aimed to identify minimally processed foods subject to exemption from taxes or retail regulations. Interestingly, while the emerging term “ultra‐processed” ²⁵ was not used in any policies, its concept was mirrored in several policies which differentiated between industrial processing (e.g., “added additives, in particular, chemicals that alter the food”) and minimal and/or homemade processing (e.g., washing, baking). Evidence suggests that ultraprocessed food products are associated with weight gain and poor health. ³⁹ For a tax policy based on Processing criteria, for example, a potato chip made only from potatoes, oil and salt would not be taxed, whereas chips made with industrial processing (e.g., containing 10+ ingredients including emulsifiers and industrial starches ⁴⁰ ) would be taxed. Compared with Product Category, Nutrient, and Place criteria, there are arguments that using Processing criteria may be more challenging to identify and implement. ⁴¹ One method for a government entity seeking to use this method would be based on the FDA‐mandated ingredient list, for example to identify the inclusion of flavor enhancers, artificial colors, emulsifiers, emulsifying salts, industrial sweeteners, thickeners, and bulking agents. ²⁴ Other more highly processed industrial ingredients include certain forms of sugar (e.g., maltodextrin, dextrose), proteins (e.g., hydrolyzed proteins, soy protein isolate), and oils (hydrogenated or interesterified oils). ²⁴

Only one active junk food tax law was identified: the excise tax implemented by the Navajo Nation in 2014 on gross receipts of retailers, based on a combination of Product Category, Processing, and Nutrient criteria. In the three states with snack food sales taxes that were later repealed, policymakers listed retailers’ difficulty in identifying which specific foods were subject to the tax as a barrier to implementation. Whether other factors contributed to repeal, such as pressure from food manufacturers subject to the tax, was not clear from the data available in this study. Importantly, retailer difficulty in identifying products subject to the tax can be avoided by assessing an excise tax on manufacturers or distributors of the food (as opposed to a sales tax on food products), thereby bypassing retailer involvement in the administration of the tax. ¹³

Manufacturers produce food, and distributors purchase food products directly from the manufacturer to hold and transport to retailers. ⁴² In both cases, the manufacturer can identify the products subject to the tax. In addition, use of an excise tax further upstream in the chain of distribution rather than at the point of purchase, requires fewer entities to be taxed, lowers government and industry implementation costs, ⁴³ and may achieve public health goals with lower impact on household budgets. ⁴⁴ In the case of excise taxes, the taxed entity determines how much to raise the base price of the product before it reaches consumers. Empirical evidence from the Navajo Nation junk food tax law, ⁴⁵ US municipal SSB taxes, ⁴⁶ and other products for which excise taxes are assessed such as tobacco ⁴⁷ demonstrate that the great majority of the cost of the excise tax is passed onto consumers through the form of a higher priced retail product—important if one policy goal is to discourage purchase and consumption in order to advance public health. In addition, if the taxing entity seeks to have all sales subject to the tax, shoppers who use SNAP do not pay sales taxes on the foods they purchase with SNAP benefits, but all consumers indirectly pay excise taxes passed on through increased purchase prices.

The choice of tax mechanism does not alter the necessity to create a clear definition of the food to be taxed. Interestingly, we did not identify any state tax law or bill that directed the state public health department to define the foods subject to the tax (the one explicit state delegation was to the state's taxing entity). In contrast, at the federal level, Congress regularly requires relevant health or food‐focused administrative agencies (e.g., USDA) to determine or expand on definitions of food categories through rule‐making, for example by relying on the Dietary Guidelines for Americans created by the USDA and Health and Human Services. The current investigation identified several federal regulations consistent with this approach. State legislature delegation of the task of honing the definition of junk food to a state agency with public health nutrition expertise can help overcome the barrier to creating a definition by legislative staff without such expertise.

With implementation of an excise tax, the taxing government can also earmark, or dedicate, the revenue for particular purposes, notably in this context, to improve healthy food access in low‐resource communities. ⁶ Such approaches can both magnify the healthful impact of these policies, as well as increase political feasibility and allay concerns about possible regressive consequences of new taxes. For example, the Navajo Nation tax revenue is being dedicated to community development projects in alignment with “values of local governance and shared community decision making.” ³⁰ In the seven US municipalities that tax SSBs, the majority of the revenue was allocated for community capital (e.g., early childhood education), followed by community infrastructure, then increasing access to healthy foods and beverages (e.g., fruit and vegetable subsidies; programs for at risk populations). ⁴⁸

It is important to note that the definition of foods to be taxed is not a static exercise. ⁴⁹ Between 2015 and 2020 alone, there were approximately 20,000 new packaged food and beverage products introduced each year in the United States. Moreover, existing products are frequently reformulated, with trends toward health‐promoting reformulations in recent years. ⁵⁰ Not only must the approach to defining foods to be taxed be robust to meet product introductions and reformulations, but the importance of these definitions in guiding food formulations, especially for definitions that incorporate nutrient cutoffs, can be great. This is an understudied topic ripe for future research. ⁵¹

When faced with new food taxes, consumers have two main behavioral responses from which to choose—pay the tax to maintain their current dietary patterns or make substitutions to avoid at least some of the tax. In this sense, although new taxation policies can generate revenue and promote healthier diets, these two outcomes are somewhat at odds in that more of one comes at the expense of the other. In any case, one must be mindful of unintended redistributive consequences of new food taxes; by their nature, some people will pay relatively more of their income than others and this may or may not be in line with other policy goals or societal needs. Importantly, the burden of diet‐related disease falls most heavily on low‐resource communities and racial and ethnic minority populations. Concerns over regressivity are of particular salience in communities that lack access to affordable substitutes for the taxed products, including both snacks and healthy foods such as fresh produce. For any jurisdiction considering a junk food tax, equity dictates that the revenue should be designated back into the jurisdiction where the tax is being assessed. ⁷

Strengths of this study included reviewing all relevant statutes, regulations, and bills enacted and proposed over a three‐decade time period for the federal government, 50 states, US territories, tribal governments, and Washington DC. Limitations include the potential for some missed policies, although given the number and type identified, any missed would be unlikely to alter our general findings or conclusions. Although not a limitation, it is worth noting that because the focus of the research was on categorizing food and not drinks, the results are also not generalizable to SSB taxes although SSBs were sometimes included in food tax bills, so they were included in the results when applicable. Because the focus of the research was on taxes, the results may not be generalizable to other types of legislative activity. As such, this research did not intend to, nor did it capture the vast amount of policy activity related to other retail‐based policy topics identified. For example, we captured only a few non–tax‐related pieces of legislation (e.g., defining food for SNAP or farm‐made foods) and these may not be representative of these other types of bills and laws. ¹⁶ , ⁵² Nonetheless, the policies identified indicated consistent themes that were useful in determining how policymakers have defined and categorized food for junk food and revenue allocation purposes.

Conclusions

Nearly 50 unique policies in the United States provide precedent for definitions and criteria of foods for taxation purposes. The most common approaches combine Product Category, Nutrients, and Processing. These finding can help to inform classification of food, administrative feasibility, and characteristics of local, state, and national policies that may use fiscal tools to address nutrition insecurity, diet‐related diseases, and health disparities in the United States.

Funding/Support: This study was funded by National Institutes of Health (Grant #2R01HL115189‐06A1).

Conflict of Interest Disclosure: None declared.