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Berkeley Soda Tax Opponents File Suit Challenging Ballot Language

Jeff Shuttleworth (BCN)
Wednesday August 27, 2014 - 10:17:00 AM

Opponents of a measure on the November ballot in Berkeley that would impose a one-cent-per ounce tax on soda drinks have filed suit alleging that the ballot statement for the measure is biased, misleading and false. 

If it's approved, Measure D would place a general tax on sodas and other sugar-sweetened drinks sold in Berkeley and use the proceeds to fund programs that promote good nutrition. It would affect businesses with annual gross receipts of more than $100,000. 

No U.S. city currently taxes sugary drinks, but a similar measure is also on the ballot in San Francisco. 

A proposed soda tax in Richmond was rejected by voters in that East Bay city in 2012. 

Plaintiffs Anthony Johnson and Leon Cain allege in their lawsuit in Alameda County Superior Court that the ballot measure language drafted by the Berkeley City Attorney's Office and approved by the City Council is "an attempt to influence the outcome of an election" and uses "biased and misleading buzzwords" to frame the question in a positive light. 

Specifically, Johnson and Cain say the ballot statement's assertion that the tax would only apply to "high calorie" or "sugary" drinks that contain at least 2 calories per fluid ounce is misleading because a 12-ounce drink that only contains 24 calories would be well under the U.S. Food and Drug Administration definition of "high calorie" items as those containing 400 calories or more. 

Johnson and Cain said Berkeley officials should use more "neutral" language such as saying the tax would apply to "sugar-sweetened beverages." 

But Berkeley officials say in their response to the suit that the terms sugary, high calorie and low nutrition "accurately describe the products to be taxed under Measure D." 

They say, "Public health and nutrition experts warn that all of the drinks that Measure D would tax are too high-calorie and sugary for young children and the World Health Organization advises everyone to limit their daily sugar intake to just 100 calories. 

Alameda County Superior Court Judge Evelio Grillo will hold a hearing on the ballot measure language on Friday. 

Berkeley School Board President Joshua Daniels, who is co-chair of the campaign in favor of Measure D, said today that he believes the beverage industry "simply doesn't want to acknowledge the science and the statistics" about the dangers of drinking soda drinks. 

The suit describes Johnson and Cain as residents, registered voters and taxpayers in Berkeley but Daniels said he doesn't believe they are long-term Berkeley residents and Cain works for a public relations firm hired by the American Beverage Association to fight against Measure D. 

Roger Salazar, a spokesman for Californians for Food and Beverage Choice and the campaign against Measure D, admitted that Cain is new to Berkeley but said he has lived in the Bay Area for some time. Salazar said Johnson has lived in Berkeley for "a while." 

Daniels said there's "nothing technically illegal" in Johnson and Cain asserting that they're Berkeley residents but he alleged that it's "a reflection of the overall bullying tactics" that the beverage industry is using against the proposed soda tax. 

Salazar said the American Beverage Association has donated $300,000 so far to oppose the tax. 

He said the beverage industry has "a right to express ourselves" and believes the proposed tax is "misguided and misleading." 

Daniels said the effort on behalf of the tax is "a genuine grassroots campaign" that doesn't plan to spend a lot of money.