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.

Related:
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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