When Kerala recently imposed a “fat” tax of 14.5 per cent on burgers, pizzas, tacos, doughnuts and pasta sold by “branded restaurants” such as McDonald’s and KFC, many applauded the tax. It was seen as a responsible move by a government keen to curb rising rates of obesity and related ailments such as type II diabetes in the State, and in the hope that taxing processed foods would prompt people to move away from calorie-laden, unhealthy food choices. On the other hand, others criticised the tax for its emphasis on particular foods sold by “branded restaurants” while ignoring the variety of processed Indian foods sold at a plethora of food outlets, whether branded or otherwise. If the idea of the tax is to address the health risks of processed food, its focus on “fat western foods” to the exclusion of equally unhealthy “fat Indian foods," appears incomprehensible. Moreover, the emphasis on food sold by branded restaurants, mainly local franchises of western food brands, again defies legitimate explanation.

Can well-meaning public health measures like the Kerala fat tax have unintended discriminatory effects which undermine the legitimacy of government action? Quite possibly. To understand why, one needs to look at international arbitrations and World Trade Organisation (WTO) cases involving tobacco control laws.

Read more: A fat tax that shouldn't go up in smoke