Lawsuit filed over Berkeley ‘soda tax’ ballot

No city has yet been successful in passing a sugar-sweetened beverages tax. Will Berkeley be first? Photo: Mike Mozart

No city has yet been successful in passing a sugar-sweetened beverages tax. Will Berkeley be first? Photo: Mike Mozart

Two men have filed a lawsuit against the city of Berkeley and the Berkeley City Council asking for changes to adopted ballot language related to the so-called “soda tax” set to come before voters in November.

The sugar-sweetened beverage tax would levy a 1 cent-per-fluid-ounce general tax on distributors of “sugary drinks” and the bulk syrup used to sweeten them. If successful, Berkeley could be the first city in the nation to pass such a tax, though San Francisco has also taken up the fight.

Lawsuit proponents argue that the ballot language adopted by council in July, as well as the city attorney’s analysis of the issue, are “false, misleading, and illegally biased,” and have asked an Alameda County Superior Court judge to force the city to adjust them before they are sent to voters this fall.

Josh Daniels, Berkeley School Board president and co-chair of the Healthy Child Initiative — the community group lobbying in support of the new tax — described the lawsuit as a “bullying tactic.” He said it’s the latest move by the No Berkeley Beverage Tax team to try to sway voters, in addition to a push poll and focus group meetings that were held with local residents earlier this summer.

The lawsuit was filed Wednesday by Anthony Johnson and Leon Cain. Little is known about Johnson, but Cain has previously attended Berkeley council meetings on behalf of the No Berkeley Beverage Tax campaign, which is fighting the tax and receives major funding from the American Beverage Association.

“They continue to try to use their money to push around voters,” said Daniels, of “Big Soda.” “They’ll do anything to try to win. And they don’t really want to try to discuss their product as a contributor to diabetes, or their marketing to kids. They want to try to distract us by changing topics.”

Read past Berkeleyside coverage of the soda tax, and more 2014 Election coverage.

Roger Salazar, spokesman for the No Berkeley Beverage Tax campaign said Thursday night that the lawsuit came about because Measure D, the city’s sugar-sweetened beverage tax ballot measure, is “clumsily written.”

“The City is trying to cover up a number of exemptions and loopholes with a false and misleading ballot label and analysis,” Salazar said, via email. “Measure D isn’t about children, it’s about raising revenue into the general fund. If proponents were serious, they would have dedicated the funds directly to programs that help people.”

(San Francisco, on the other hand, is going for a special tax in its fight against “Big Soda,” which requires a two-thirds supermajority, and would be “legally earmarked for nutrition, physical activity, and health programs,” according to that campaign’s website.)

Friday at 9 a.m., a Superior Court judge is set to hear the matter in Department 31, at 201 13th St. in Oakland — on the second floor of the U.S. Post Office Building — and may consider whether to speed up the schedule to receive arguments from both parties.

The "soda tax" ballot language as adopted by council in July.

The “soda tax” ballot language as adopted unanimously by council in July.

The lawsuit contends that the Berkeley City Council, when it unanimously adopted the ballot question language in July, substituted “high-calorie, sugary drinks” for the “more neutral” language suggested by city staff (“sugar-sweetened beverage”). That resulted in a ballot question that is “misleading” and politically charged, proponents say.

State law requires ballot materials to be impartial. The petitioners say it would be more fair if the city used the phrase “sugar-sweetened beverage products” in the ballot materials instead.

According to the ordinance, the tax would apply to drinks with at least 2 calories per fluid ounce, such as a 12-ounce canned drink with 24 calories. The lawsuit says, as such, it would affect beverages “no reasonable person would regard as ‘high-calorie.'”

The lawsuit takes issue with the “high-calorie, sugary” language in the ballot question, and insists the tax’s reach would be “far broader” than voters might think. (It also cites USDA material that defines “high-calorie” foods as those with 400 calories or more, and low-calorie foods as those with 40 calories or less.)

“Rather than draft a fair, impartial and accurate label, as the law requires it to do, the CITY COUNCIL has illegally injected politically-charged language tracking its partisan political views in favor of the tax measure into the voting booth,” the lawsuit asserts.

Click to read the ordinance and the lawsuit.

The tax would apply to types of drinks listed in section 1, above, that contain “at least 2 calories per fluid ounce.” Click to read the ordinance and the lawsuit.

Daniels, of the Healthy Child Campaign, said he believes the lawsuit proponents are “grasping at straws,” and that, in his opinion, the ballot language is fair and accurate.

“The measure does focus on high-calorie, low-nutrition sugary drinks and the syrups that make them,” said Daniels. “There really isn’t a need to make any changes to it.”

According to the lawsuit, the city attorney’s analysis — which would appear in the voter guide — includes the same problematic language as in the ballot question, and should also be changed.

In addition, the city attorney’s analysis includes references to “low-nutrition products” and “heavily” sweetened teas, which lawsuit proponents say is an issue.

The tax would affect juice drinks “that contain in some cases up to 100 percent of the recommended daily value of nutrients,” as well as “reduced calorie sports drinks which provide hydration, electrolyte replacement and other benefits to athletes,” according to the lawsuit. The petitioners say those types of drinks cannot fairly be characterized as “low-nutrition products,” and says the phrase “heavily” is not defined anywhere, and is too vague to be included.

Daniels countered that the opposition to the tax is doing everything in its power to avoid talking about the negative health impacts of sugar, or the way soda companies target marketing toward children.

“At the end of the day, they’re doing something that is making our kids sick,” he said. “The truth is that their products are linked to diabetes, and that one in three kids will get diabetes in their lifetime.”

The lawsuit does reference the health issue. It describes the fight to combat childhood obesity as one of the main concerns of the people who are promoting the new tax. But petitioners argue that it isn’t crafted in a way that will significantly improve or protect public health.

As a general tax, the money would go into the city’s general fund. But, according to those championing the tax, it will “pay for programs and services for the people of Berkeley. The soda tax measure creates a panel of child nutrition and public health experts to make recommendations to the city about funding programs that improve children’s health. Our coalition is committed to advocating that the new revenue to go towards supporting programs that give kids and families tools to make healthy choices about what they eat and drink.”

Lawsuit proponents also take issue with the city’s contention that the tax will be paid by distributors, “not the customer.” They say “the ultimate costs” will be passed on to consumers should the measure prevail.

They have asked the judge to remove the phrase “not the customer” from the city attorney’s analysis, saying that its inclusion is “plainly designed to encourage voters to support the tax measure, by persuading them that ‘others’ … will bear the costs of this tax. In other words, it is the implicit promise of a ‘free lunch.'”

The lawsuit asks for changes in the election materials, as well as financial payments to cover the costs of the case and “such other equitable relief as this Court deems just and proper.”

The lawsuit identifies its petitioners, Johnson and Cain, as residents, registered voters and taxpayers of Berkeley. Cain, a political consultant, is listed as an associate at Rodriguez Strategies, a campaign consulting firm based in Los Angeles. (That company’s CEO, Matt Rodriguez, recently faced off, as a representative of No Berkeley Beverage Tax, against Berkeley City Councilman Laurie Capitelli at an election event about the sugar-sweetened beverage tax.)

According to Cain’s Twitter feed, he moved to the Bay Area from Southern California in July 2013 and has been working on the “beverage choice” cause in Northern California since that time.

No Berkeley Beverage Tax describes itself as “a coalition of citizens, local businesses and community organizations opposed to beverage taxes,” but has not made a list of its supporters publicly available.

Berkeley School Board President Daniels said that, unlike the Healthy Child Initiative — which counts dozens of Berkeley-based organizations and individuals among its supporters — the No Berkeley Beverage Tax campaign appears to have taken a different approach.

“The opposition is almost exclusively paid for by the big bucks of ‘Big Soda,'” he said Thursday. “Who our supporters are is a genuine reflection of what Berkeley is.”

Read past Berkeleyside coverage of the soda tax, and more 2014 Election coverage.

Berkeley councilman faces PR man in ‘soda tax’ debate (07.30.14)
Berkeley puts sugar tax on November ballot (07.02.14)
Plans firm up for Berkeley soda tax, city parks measures (05.21.14)
Community survey shows difficulties for ballot measures (05.06.14)
Sugar tax hits the sweet spot for Berkeley residents (03.14.14)
Will Berkeley be first in nation to impose soda tax? (02.12.14)

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  • Chris J

    Ah, democracy!

    It seems plain to me that the organization opposed to the beverage tax is probably just these two guys, one of whom is a paid political consultant and all the ‘coalition’ is probably…no one else. While I’m no big fan of sweet sodas beyond the very once-in-a-blue-moon coke (and I LIKE coke, but I just don’t care for their empty calories), I find the penchant for pursuing public health issues by taxing the makers to be mildly alarming. While most might realize that excessive intake of sugary or ‘sugar-sweetened’ drinks is hardly advisable, legislating higher taxes on the makers will only hurt the poor folks who seem to be unaware of its being such a poor health choice.

    Isn’t it better to increase PSAs or other educational means? What’s next, too much salt in our food?

  • guest

    That is some of the most confusing ballot language I have ever read. I’ve been reading the Berkeleyside coverage of this and am fairly familiar with the proposition but I can’t make heads or tails of that summary.

  • guest

    I support the sugary drinks tax.

    I would also support an alternative measure which would derail the drinks industry: Immediate ticketing and towing of double parked drink distribution trucks.

    The substitute language of “sugar sweetened” sounds like it would not include corn syrup.

  • Jim

    Reminds me of the “Concerned Library Users” or the “Elmwood Neighborhood Association” or even Jesse Arreguin’s whining about the ballot measure language for his anti-development proposal.

    Why are there so many of these groups of 1 or 2 people who claim to be an “organization” in Berkeley and try to use lawsuits to wrench up the works?

  • EastBayer

    No one listens to PSAs. People listen to their wallets.

    Taxing detriments to public health is a means of internalizing the external costs. Economically efficient.

  • guest

    Why add a local tax to negate the effects of a federal subsidy?

    Instead of spending the public’s money twice with this runaround nonsense why not lobby our legislator to get them to get rid of the damned high fructose corn syrup subsidies once and for all?

  • jjohannson

    Not happy with the fact the revenue goes into the general fund, versus directly into programs promoting youth exercise and health. That *was* clumsy of the city.

    Of course, if it did allocate for those things, the “No” people would have sued on other grounds. All in all, I’m still ready to stick it to this special interest.

  • Michael Barnes

    If the revenue goes into the general fund, you need a simple majority to pass. If you earmark revenue for specific purposes, you need 2/3 supermajority.

  • Completely_Serious

    “Not happy with the fact the revenue goes into the general fund,”

    This. I’m in favor of the goal, but against the method. After all, this is the same general fund used by the city to sue itself over redistricting. Give a politician money, he’ll spend it.

    And about redistricting — did everyone see where NO student signed up to run in District 7?

  • guest

    Why not do both! Walk and chew gum!

  • jjohannson

    That’s an important point, one that I hope the city makes to voters. Is it your understanding that this is a result of Prop 26 —,_Supermajority_Vote_to_Pass_New_Taxes_and_Fees_(2010)

    — which Berkeley’s voters almost certainly rejected (perhaps by 2/3rds)?

    Thanks for the comment.

  • dwss5

    Article quote:”Roger Salazar, spokesman for the No Berkeley Beverage Tax campaign said
    Thursday night that the lawsuit came about because Measure D, the city’s
    sugar-sweetened beverage tax ballot measure, is “clumsily written.” ”

    Baloney Stuff!! Nothing more than Big $oda bigmouth’s Salazar further perpetuating his puppetmasters’ desires, which I hope will be readily seen as nothing more than an utterly FRIVOLOUS lawsuit!!

    When Big $oda’s “language”-lawsuit fails, they’ll no doubt turn to OTHER means of disseminating more FUD (Fear, Uncertainty, Doubt) to try defeat the ‘soda tax’ measure!

  • dwss5

    “I would also support an alternative measure which would derail the
    drinks industry: Immediate ticketing and towing of double parked drink
    distribution trucks.”

    Whether there is an alternative measure to ticket and tow double parked drink
    distribution trucks or there is (or isn’t) a change to the wording of the “sugar tax” measure, Big $oda is absolutely G-U-A-R-A-N-T-E-E-D to fight tooth-and-nail against these by bringing as much FUD as possible against these measures (FUD = Fear, Uncertainty, Doubt).

  • guest

    First, you convince congress to get rid of the subsidy – though it is impossible because the Republicans control the House. Then I will give up on local taxes – which are something that we actually can do.

  • guest

    Have you become a member of the Kriss Worthington machine? They are spreading this idea, when in fact, a recent graduate is running and could represent students’ perspectives.

  • guest

    After Worthington and Arreguin have been spreading FUD (Fear, Uncertainty & Doubt) about what the district boundaries will be and the Worthington machine has been churning extra money from donors it’s no surprise there aren’t a lot of people running against them.

  • guest

    Yes, why not do both? Why aren’t the advocates of this measure targeting any of the root problems here instead of just championing a regressive tax that targets minority preferences?

  • John Freeman

    Evidently the bosses can’t figure out a way to eliminate the corn subsidy without risking food inflation high enough to pose serious problems for the political structure.

    So far as I know, modern agriculture subsidies started when the economy collapsed in the Great Depression. One problem back then was that farms had become too efficient.

    There was too much food so people had to go hungry. Too much food makes it hard to obtain a profit.

    Part of the solution in those early days was to order some crops to be burned to reduce the supply and make sure the price remained high enough to sustain production.

    Subsidies have proved to be a one way street ever since.

    In that sense, trying to impose artificial costs on an undesirable use like HFCS is understandable. It goes hand in hand with the tactic of doomed hail mary plays to find alternative uses like susttainable biofuels.

  • Jon Krop

    I’m not a fan of corn syrup, or big soda; but I’m not in support of the bill as it is written. I’d probably be more in favor of it if the tax was to be paid by the soda makers rather than the consumers and stores; and if the funds raised from said tax were recorded in a transparent manner and actually went towards a specific goal.

  • Guest

    The tax is on the distributors end not the seller, i.e. Safeway or Lucky’s. Now if the distributor passes the cost down to the retailer and then to the consumer that is another matter.

  • Realist

    Big Soda ???? Wah Wah how sinister…keeps me awake at night….More big GOVERNMENT screwing the economy…’s NOT “another matter” that the consumer will shoulder this…….but fact !

  • guest

    Duh. The subsidies have to be removed on the federal level. The tax can be imposed locally.

    In fact, there have been efforts to remove these federal subsidies, but they have failed.

  • guest

    I would be curious to know just when Leon Cain moved to Berkeley, what street he claims to live on, how many times he has voted in a Berkeley election, what taxes he has paid to Berkeley, and whether he really intends to keep his carpet bags here after the vote. Seems like gilding the lilly to call himself a resident.

  • supersickandtired

    why wasn’t the change made when the dems controlled the house?…Hypocrite!

  • sam g

    I’d be with you on the double parking issue–FED EX and UPS act like they OWN the streets– but i’m worried they might start ticketing BEER delivery trucks!

  • guest

    If you want to get back to the real world, you might review the history of the controversies over changes in the Farm bill. You can start with

    The majority leader can’t just wave a magic wand to pass a bill.

  • Bill N

    At least someone signed up to run in District 7 and he’s a relatively recent student. a native Berkeley and BHS graduate – “Sean Barry and I’m a candidate for Berkeley City Council in District 7”

  • Vincent_WNA

    Let’s look at who the plaintiff is. Anthony Johnson is a VP and Assoc. Creative Director for Edelman, a PR & Marketing company located in San Francisco.

    Here’s a quote off the company’s website home page: “The Interactive Advertising Bureau (IAB) and Edelman Berland conducted a study on how U.S. online news users feel about sponsored content and, importantly, what it takes for brands, publishers and agencies to get it right.”

    From the coverage they got on the filing of the lawsuit, it’s clear they know how to get the most mileage out of the internet. It’s not nearly as clear that they have a case.

    I do believe that spending money on flyers and PSA’s can change people’s behavior. Just look at the long running campaign to discourage smoking. There is a multi-year campaign funded from state dollars that has cut the rate of smoking significantly. Let’s give this a chance to work.

  • emraguso

    The hearing should begin shortly; we hope to live tweet highlights (as long as it doesn’t detract from note taking):