Proposed Berkeley Soda Tax Language Changed

A California state court has adjusted the language in the soft drink tax on the November 2014 ballot by replacing “high-calorie, sugary drink” with “sugar-sweetened beverages” to clarify the proposed tax and to conform with election codes. Johnson v. Numainville, No. RG14786763 (Cal. Super. Ct., Alameda Cty., order entered September 2, 2014). Agreeing with the two Berkeley residents who filed the lawsuit, the court found that “the ballot question here asking whether a tax should be imposed on ‘high-calorie, sugary drinks’ is likewise 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.” The court also found issue with the City Attorney’s Impartial Analysis of the measure, which described it as a tax on “high-calorie, low nutrition” products, because “this phrase similarly seems designed to sway voters in favor of voting for passage by suggesting that the beverages being taxed are not good for voters.” The report also described some of the beverages subject to the tax as “heavily presweetened tea,” which the court found to be misleading and struck the “heavily” descriptor from the analysis. Finally, the court agreed with the city on the statement that “the tax would be payable by the distributor, not the customer,” finding the phrase not partial or misleading despite the plaintiffs’ argument that the cost would likely be passed down to customers via higher prices. Additional information on the lawsuit appears in Issue 535 of this Update.