Judge issues tentative ruling on ‘soda tax’ ballot language

Ariel Hayat/Staff
Christopher Skinnell, lawyer for the plaintiffs, left, and Margaret Prinzing, the city's lawyer, appear at the Aug. 29 soda-tax hearing.

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OAKLAND — At a Friday hearing, an Alameda County Superior Court judge issued a tentative ruling instructing the city to reword a “soda tax” initiative on the November ballot.

A month after Berkeley City Council unanimously voted to include on the November ballot an ordinance that would tax sugar-sweetened beverages, two Berkeley residents filed a lawsuit against the city, asserting that the ballot initiative for the tax contains biased language.

The plaintiffs alleged that the ballot language was “illegally injected” and “politically charged,” according to the suit.

Leon Cain, one of the plaintiffs, is an associate for a public-affairs firm based in Los Angeles whose CEO conducts “coalition building efforts” in California for the American Beverage Association, according to its website.

What the petitioners took particular issue with was the use of the words “high calorie sugary drinks” and “low nutrition products” to describe the taxed beverages.

This point was addressed at Friday’s hearing when Judge Evelio Grillo ruled to replace “high calorie sugary drinks” and “high calorie low nutrition products” with “sugar-sweetened beverages.” Christopher Skinnell, the lawyer for the plaintiffs, explained that while the tax is intended to curb obesity, the tax as written would apply to low-calorie beverages that do not contribute to obesity.

He described the “high-calorie sugary drinks” as a “buzzword designed to advocate the tax.” Margaret Prinzing, an attorney representing the city, conceded that while “high-calorie sugary drinks” may evoke an emotional response from voters when they read the ballot measure, the words themselves do not clearly influence a “yes” or “no” vote for the tax.

Skinnell also raised concerns that while the measure as written says such a tax would only apply to distributors, consumers would ultimately assume the cost, because the tax would result in raised prices for sweetened beverages. Prinzing responded that such an effect is just speculative. The issue, however, was not addressed in Grillo’s tentative ruling.

If the soda tax passes, Berkeley, along with San Francisco, would be one of the first cities in the country to implement such a tax.

Sixty-six percent of Berkeley residents supported a tax of 1 cent per ounce on sugar-sweetened beverages, with 28 percent opposed, according to a survey the city conducted in March to gauge public support. The measure would need 50 percent of the vote to pass, and if approved, the revenue would go into the city’s general fund.

The hearing was one of two held Friday afternoon regarding language in the city’s ballot measures. Councilmember Jesse Arreguin requested a hearing to adjust ballot language on an initiative passed by City Council to heighten sustainability standards and restrictions on Downtown Berkeley development projects.

The judge will make final rulings on both issues Sept. 2 by 5 p.m.

Bo Kovitz covers city news. Contact her at [email protected] and follow her on Twitter @beau_etc.