OAKLAND, Calif. (CN) - Two voters sued the Berkeley City Council, claiming its ballot language for Measure D "soda tax" - a penny per ounce tax on sodas and other sweetened drinks - uses the incorrect and politically charged phrase "high-calorie, sugary drinks," to advocate for the measure on the ballot.
The City Council voted unanimously to place Measure D on the November ballot.
If approved, it would place a general tax on sugar-sweetened beverage products distributed in the city. Berkeley would be the first city in the country to tax sugary drinks.
But in his Aug. 13 lawsuit in Alameda County Court, Anthony Johnson calls the ballot language "false, misleading, and illegally biased."
Measure D's label asks, in part, if voters should adopt "an ordinance imposing a 1¢ per ounce general tax on the distribution of high calorie, sugary drinks (e.g., sodas, energy drinks, presweetened teas) and sweeteners used to sweeten such drinks."
Johnson takes exception to the statement "high calorie, sugary drinks," calling it a "politically charged phrase that has no basis in the tax measure itself."
He claims the phrase does not appear anywhere in the ordinance, which uses the more neutral term, "sugar-sweetened beverage products."
It is also misleading to say that the tax applies to drinks that are "high-calorie," Johnson says.
The ordinance calls for any beverage that contains one or more added caloric sweeteners and that contains at least two calories to be subject to the tax.
"Under this definition, a 12-ounce canned drink containing a mere 24 calories would be covered by the City's proposed tax," Johnson says in the complaint.
"A reasonable voter would not consider a 12-ounce drink containing only 24 calories to be 'high calorie' or 'sugary.'"
According to the lawsuit, the original language the City Council adopted for the ballot stated: "Shall the City of Berkeley impose a general tax of 1 cent per ounce on sugar-sweetened beverages distributed in the City, payable by distributors with annual gross receipts over $100,000?"
The City Council, at the city attorney's urging, ordered changes to the ballot label, including substituting "high-calorie, sugary drinks" for "sugar-sweetened beverage," though the latter term is what is contained in the tax ordinance itself, Johnson says.
"This substitution was adopted in a transparent effort to complement the partisan message of the measure's supporters with the official ballot materials. The chief argument of the proponents of the measure - as reflected in the public comments at the July 1, 2014 council meeting, including comments by the members of the council who support it - is that it is purportedly necessary to combat childhood obesity. That the measure would have this effect is hotly contested by the measure's proponents," the lawsuit states.
Johnson claims that the wording of the ballot label "effectively advocates for the passage of the measure."
He seeks an order that the ballot label for Measure D be amended to neutral language.
He is represented by Christopher Skinnell with Nielsen Merksamer Parrinello Gross & Leoni, of San Rafael.