IMPOSTOS SAUDÁVEIS SOBRE ALIMENTOS ULTRAPROCESSADOS: A EXTRAFISCALIDADE COMO INSTRUMENTO DE INDUÇÃO SOB O PRISMA DA IGUALDADE TRIBUTÁRIA

Abstract

This study aims to discuss the compatibility of healthy taxes on ultra-processed foods with the principles of equality and equity in taxation, considering the primarily extra-fiscal purposes of this measure, through exploratory legal-theoretical research, with bibliographic methodology and qualitative approach. Given the rise of overweight and obesity to a global epidemic, it is necessary to recognize that these conditions represent a public health emergency, that causes negative repercussions to society as a whole. To avoid jeopardizing its constitutional duties and international commitments, the Brazilian State must adopt public policies aimed at reducing the risk of diseases and other health problems, providing access to actions and services for the promotion, protection and recovery of health and ensuring food and nutritional security for the population. In this scenario, the use of instruments of fiscal policy to discourage the consumption of products that are harmful to human health, such as ultra-processed foods, is considered one of the most cost-effective means of combating “Globesity”. By instrumentalizing state intervention in the economy in the form of induction processes, healthy taxes are extra-fiscal norms that seek to discourage the consumption of ultra-processed foods with the non-fiscal purpose of ensuring a dignified existence by promoting the fundamental rights to health and adequate food, without, however, losing their tax nature. Therefore, they must not only be justified by the directives of the Economic Order established by the Brazilian Constitution, but also respect the canons of Tax Law. In the Brazilian legal system, the potential of this measure remains underexploited due to the limitations imposed by tax legality, as incorporating health taxes on ultra-processed foods into the National Tax System faces legislative resistance, despite the existence of normative openings to enact it, in light of the selectivity of the IPI and the ICMS, as well the incidence hypothesis of the new IS. As one of the main arguments against this taxation, its compatibility with the principles of equality and equity in taxation is contested, from the perspective that overtaxing ultra-processed foods for the harmfulness that they pose to human health would relegate the graduation of the tax burden according to contributive capacity. However, taken as multidimensional principles with relative nature, equality and equity encompass tax differentiations as long as they are based on discrimination criteria legitimized by the normative system, which are not restricted to the contributive capacity. While it remains subjected to equality and equity in taxation and contributive capacity, extra-fiscality attracts other parameters of distinction that, when contrasted with the purpose of the measure, allow the tax rule to be controlled in terms of validity to verify the legitimacy of the pursued non-fiscal purpose, the relevance of the chosen discrimination criterion and the proportionality of the restriction of the other principles at stake. Based on this analysis, adopting healthy taxes on ultra-processed foods with the purpose of discouraging the consumption of these harmful products in favor of promoting a dignified existence is consistent with the principles of equality and equity in taxation provided that it leads to a proportional restriction of the other fundamental rights of taxpayers. Thus, once legislative resistance is overcome, it will be necessary to confirm whether the tax rule that embodies the measure is necessary, adequate and proportional, considering the concrete factual and legal conditions, without prejudice to the subsequent control of the effectiveness of this taxation.