Judge changes Berkeley 'soda tax' ballot language

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

An Alameda County Superior Court judge ruled this week on what to change, and what to retain, in the ballot materials for a sugar-sweetened beverage tax set to come before Berkeley voters in November.

After hearing arguments Friday, Judge Evelio Grillo ruled Tuesday that some of the language in the ballot materials adopted by the Berkeley City Council earlier this year violated state election laws, was partial and should be changed, but also said language about who will pay the tax — it is to be levied on distributors — can be left as-is.

The sugar-sweetened beverage tax, Measure D, would levy a 1 cent-per-fluid-ounce general tax on distributors of soft drinks, energy and sports drinks, and sweetened teas, 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.

Supporters for the tax include a long list of community organizations, city and school district officials and other individuals. The campaign has called itself “Berkeley vs. Big Soda,” the Healthy Child Initiative and, now, Yes on Measure D. (The group is kicking off a lecture series this week regarding “the impacts of sugar-sweetened beverages.”) According to campaign filings from August, the group had about $21,000 on hand.

The opposition campaign, No on D — which previously was called No Berkeley Beverage Tax — has described itself as “a coalition of citizens, local businesses, and community organizations” but has published no list of supporters. According to its website, however, it has received “major funding” totaling $300,000 from the American Beverage Association.

Read past Berkeleyside coverage of the soda tax and the 2014 election.

Two Berkeley residents, Anthony Johnson and Leon Cain, filed a lawsuit in August asking the court to change the phrases “high-calorie, sugary drinks” and “high calorie, low nutrition products” to “sugar-sweetened beverages” in ballot materials. State law requires ballot materials to be impartial.

Grillo described the “high-calorie” phrases as “partial and misleading” and said they were “a form of advocacy and therefore not impartial. This phrase suggests that the tax will be limited to certain beverages that contain more than the average calories and too much sugar; in other words, beverages that most people would find to be unhealthy.”

He said the language adopted by council “improperly advocates voting in favor of the tax” and granted the request by the petitioners to use language he said is more neutral.

Grillo continued: “Petitioners make a compelling argument… that claiming the tax is imposed on ‘high-calorie, sugary drinks’ is misleading to voters when in fact, a tax would be imposed on any 12-ounce drink containing a mere 24 calories. The court agrees that a reasonable voter would not be likely to consider a beverage containing 24 calories to be ‘high calorie’ or ‘sugary.’”

In addition, the city attorney’s analysis in the ballot measure referred to “heavily” sweetened teas, which lawsuit proponents said was problematic.

Grillo wrote that he agreed with them, saying in his ruling that even teas that are less sweetened, with 30-40 calories per serving, would be taxed.

“The court can only conclude based on the evidence that the word ‘heavily’ is biased or partial as advocating for passage of Measure D, and misleads the voters into thinking that the proposed tax will exempt certain presweetened teas when in fact, the tax will apply to presweetened teas containing only 30 calories per serving,” he wrote.

Lawsuit proponents also took issue with the city’s contention that the tax will be paid by distributors, “not the customer,” as described in the ballot summary. They said that, though it is literally true, they believe the costs will be passed on to consumers when distributors and retailers try to recoup expenses, wrote Grillo.

But Grillo said he sided with the city on that matter, noting that the petitioners failed to present convincing evidence to show that the language was misleading or partial.

“Petitioners only speculate that it is likely that such costs will be passed down to consumers,” he wrote. “As the City points, out, distributors or retailers could choose to absorb the cost of the tax in order to better compete with other distributors or retailers.”

Grillo said the phrase “not the consumer” also serves to inform voters that it is the distributor who will responsible for the tax, and that no automatic price increase will be triggered.

The new ballot summary for Measure D appears below.

Part of the city attorney’s analysis also was changed.

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Judge changes Berkeley ‘soda tax’ ballot language

Emilie Raguso