BERKELEY -- The description of a proposed tax on the distribution of sugar-sweetened beverages slated to appear in Berkeley's voter pamphlet as Measure D, is "false, misleading, and illegally biased," according to a lawsuit filed this week in Alameda County Superior Court.
Josh Daniels, Yes on D co-chairman, however, accused the American Beverage Association, which is backing the opposition to the measure, of using "bullying tactics to distract from the truth about what (sweetened beverage) products are doing to our kids."
The opposition should be "engaging on the merits rather than trying to push Berkeley around in some frivolous lawsuit," said Daniels, the Berkeley school board president.
Measure D, which will be on the city's November ballot, proposes a general tax of 1 cent per ounce on the distribution of sugar-added drinks.
The lawsuit, filed Wednesday, argues that the use of the phrase "high-calorie, sugary drinks," in both the ballot question and city attorney analysis, is "highly misleading, in that the tax applies to drinks that no reasonable person would regard as 'high-caloric."
The tax would include products that have as few as two calories per fluid ounce and thus "a 12-ounce canned drink containing a mere 24 calories would be covered by the city's proposed tax," the lawsuit states.
Daniels, however, said that using the two-calorie per ounce standard is fair when considering sugar-added beverages. He also contended that soft drink labels often have a misleading calorie count. Many say the number of calories in an eight-ounce serving, when the container is actually 12 or 20 ounces, he said.
"At the end of the day, what they're trying to distract all of us from is that their product contributes to the significant spike in childhood diabetes," Daniels said.
The lawsuit also contends that it's misleading to say the tax will be paid by distributors. Although literally true, the likelihood is that the tax will be passed on to consumers, the lawsuit says.
Daniels responded, however, that "Economics 101 says that if you increase the price of distribution, you'll distribute less. If they distribute less, then Berkeley consumers will consume less, regardless of price, because there's less available."
The two plaintiffs named in the lawsuit, filed by San Rafael-based Nielsen Merksamer Parrinello Gross & Leoni, are Leon Cain and Anthony Johnson. Roger Salazar, a spokesman for No Berkeley Beverage Tax, acknowledged that Cain, who recently moved to Berkeley, is working for the campaign against the measure.
Cain is listed online as an associate of Rodriguez Strategies, a Southern California firm doing public relations work for the opposition campaign. Salazar said he works with Rodriguez Strategies but not for the company.
City Council candidate Jacquelyn McCormick said Cain contacted her recently to see if she could help him find people interested in serving as plaintiffs in the suit. McCormick said she declined because she supports the measure.
Arguing that Measure D is poorly written, Salazar said opponents are going to court to have an impartial title and summary imposed by a judge, so that they can "fight Measure D on a fair and level playing field."