OAKLAND -- A November ballot measure in Berkeley that would tax the distribution of sodas and other sweetened drinks appeared headed for watered-down language after a hearing in Alameda County Superior Court in Oakland on Friday.

Two residents who oppose the measure had sued City Clerk Mark Numainville and Alameda County Registrar of Voters Tim Dupuis, objecting to the term "high-calorie, sugary drinks" in the city's ballot description of Measure D, a one-cent-per-ounce general tax on the distribution of the drinks. The measure would require a simple majority of votes for passage.

Judge Evelio Grillo noted that he had made a tentative ruling striking "high-calorie, sugary drinks" in favor of "sugar-sweetened beverages," both in the ballot label and in the impartial analysis. After hearing arguments by attorneys for the two sides, Grillo displayed little inclination he might change his mind. He promised a printed order by 5 p.m. Tuesday.

Christopher Skinnell of San Rafael-based legal firm Nielsen Merksamer Parrinello Gross & Leoni, LLP is representing the petitioners, Anthony Johnson and Leon Cain. Margaret Prinzing of San Leandro-based Remcho, Johansen & Purcell is representing the respondents.


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In his petition to the court, Skinnell characterized "high-calorie, sugary drinks" as "clearly biased, misleading and false," complaining that some of the drinks that would be taxed would not qualify as high-calorie by most standards.

Prinzing countered that high-calorie drinks would indeed be taxed under the measure and that thus the wording was accurate.

Some of the measure's proponents are crying foul over the suit.

"This lawsuit is straight out of Big Tobacco's playbook that Big Soda is now using," Martin Bourque, executive director of the nonprofit Ecology Center and a member of the Measure D campaign committee, said in an email. "Attempting to bully us with corporate lawyers is how they manipulate the democratic process."

Bourque called the legal challenge "an expensive diversion from the real issue," adding, "We have a serious children's health crisis in Berkeley, and soda is a large part of the problem."

Skinnell said "high-calorie, sugary drinks" are "politically charged buzzwords" and that including them in the ballot language would be "advocacy" for the measure.

The beverage measure wording was not alone in facing a legal challenge.

Earlier on Friday, Grillo considered another suit, this one brought by Jesse Arreguin in his capacity as a Berkeley voter, seeking to tweak language in Measure R, also on the city's November ballot and popularly known as the Downtown initiative.

Arreguin, who is a Berkeley councilman, said the language unfairly downplays some elements of the measure while highlighting others. Measure R would amend downtown zoning.

Arreguin asked the judge to add "increase affordable housing requirements" among other proposed changes to the ballot label. Grillo had not issued a ruling as of late Friday.

Contact Tom Lochner at 510-262-2760. Follow him at Twitter.com/tomlochner.