A judge ruled today that city of Berkeley officials must change their ballot summary for a proposed soda tax measure on the ballot in Berkeley in November because the current language is misleading.
Alameda County Superior Court Judge Evelio Grillo said the city's statement that the tax would only be imposed on "high-calories, sugary drinks" is "a form of advocacy and therefore not impartial."
Grillo ordered the city to change the summary to say that the tax would apply to "sugar-sweetened beverages," which he said is more neutral and less likely to create prejudice for or against Measure D.
The measure, which was placed on the ballot by the Berkeley City Council in a unanimous vote, would impose a one-cent-per-ounce 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.
Grillo said the tax would apply to drinks with as few as 24 calories and he agrees with tax opponents that "a reasonable voter would not be likely to consider a beverage containing 24 calories to be 'high-calorie' or 'sugary.'"
Grillo said tax opponents provided convincing evidence that the tax would be imposed on several drinks with only 30 or 40 calories.
The No on D campaign is primarily funded by the American Beverage Association, which has spent $300,000 so far.
The tax opponents said in their lawsuit that 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.
Berkeley officials argued that public health experts consider a 24-calorie sugary drink to be high-calorie for children and that a World Health Organization draft guidelines says teen and adults should consume no more than 40 calories per beverage container.
But Grillo said the city's argument was "not persuasive."
Tax opponents also argued that ballot language that says the tax would be paid by distributors, not by consumers, is misleading because they believe distributors would pass on the extra cost to consumers.
But Grillo ruled against tax opponents on that issue, saying they failed to provide clear and convincing evidence based on the ballot statement that the tax won't be paid by consumers is misleading or partial.
The judge said tax opponents "only speculate that it is like that such cost will be passed down to consumers, but it is unknown at this point whether or not any of the tax will eventually be passed down to consumers."
Grillo said the city correctly pointed out that distributors and retailers could choose to absorb the cost of the tax in order to better compete with other businesses.
Berkeley school board member Joshua Daniels, who is co-chair of the campaign in favor of Measure D, said Grillo's order that the ballot language be changed is only a "relatively minor" development and "doesn't concern us at all" because "everyone knows that the measure is focused on preventing diabetes" and he thinks it will still be approved.
Daniels said that overall Grillo's ruling is "a victory" for Measure D supporters.
Grillo's ruling came one day before the deadline on Wednesday 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 on Nov. 4.