A judge said Friday that he has tentatively ruled that city of Berkeley officials must change their ballot statement for a proposed soda tax measure that's on the ballot in Berkeley in November because of concerns that it's misleading.
But after hearing legal arguments on the matter, Alameda County Superior Court Judge Evelio Grillo said he won't issue a final ruling in the case until Tuesday.
Timeliness is of the essence because Wednesday is the deadline for the Alameda County Registrar of Voters Office to send ballot arguments to the printer so that voters can receive them well in advance of the election.
Measure D, which was placed on the ballot by the Berkeley City Council in a unanimous vote, would impose 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 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.
Soda tax opponents 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, opponents 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.
Opponents say Berkeley officials should use more "neutral" language such as saying the tax would apply to "sugar-sweetened beverages."
But Berkeley officials say that the terms sugary, high calorie and low nutrition "accurately describe the products to be taxed under Measure D."
Grillo said in court Friday that he's inclined to remove the term "high calorie" from the ballot statement and substitute the term "sugar-sweetened."
Grillo said the city should be careful about the language it uses in its statement because it "should not engage in advocacy."
However, Grillo said he's inclined to allow the city to say that the tax would be paid by distributors, not by consumers.
Christopher Skinnell, an attorney for soda tax opponents, said Friday that the city's assertion that the tax won't be directly paid by consumers may be literally true but he still thinks it's "misleading." Skinnell said, "The purpose of the tax is to raise the price of drinks so demand goes down."
But Margaret Prinzing, an attorney for the city, said it would be speculation to say that the cost of the tax would ultimately be passed on to consumers.