OAKLAND -- An Alameda County Superior Court judge has struck the words "high-calorie, sugary drinks" from the wording of a Nov. 4 Berkeley ballot initiative that would tax the distribution of sweetened beverages, finding the term to be "partial and misleading."

Judge Evelio Grillo, in an order published Tuesday, replaced the ousted term with "sugar-sweetened beverages" in the ballot question of Measure D, which now reads:

"Shall an ordinance imposing a 1¢ per ounce general tax on the distribution of sugar-sweetened beverages (e.g. sodas, energy drinks, presweetened teas) and sweeteners used to sweeten such drinks, but exempting: (1) sweeteners (e.g. sugar, honey, syrups) typically used by consumers and distributed to grocery stores; (2) drinks and sweeteners distributed to very small retailers; (3) diet drinks, milk products, 100% juice, baby formula, alcohol, or drinks taken for medical reasons, be adopted?"

Measure D is a general tax that requires a simple majority to pass.

Grillo also substituted "sugar-sweetened beverages" in the city attorney's impartial analysis for what had been a reference to "high-calorie, low-nutrition products," and struck the qualifier "heavily" from a reference to presweetened tea in the impartial analysis.

But Grillo let stand a statement in the impartial analysis that the tax would be payable by the distributor, not the customer, over the objections of two petitioners, Anthony Johnson and Leon Cain. They contended that the statement, while technically true, was misleading, because the tax eventually would get passed along to the consumer.


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In his opinion, Grillo noted that under the proposed ordinance, drinks with as little as two calories per ounce would be taxed; he questioned whether a voter would consider such a drink to be high-calorie.

The No on D campaign, which receives major funding from the San Rafael-based American Beverage Association California PAC, greeted Grillo's order as a victory, proclaiming in a news release Tuesday: "Superior Court finds Berkeley's Measure D Ballot Label Violates Election Code."

"The city's mess of a measure is not only misleading, it doesn't do what the proponents claim," stated No on D spokesman Roger Salazar. "There is no guarantee the funds will be used for nutritional programs and so many products are exempt that it makes you wonder if this is nothing more than an exercise in vanity."

But the nonprofit Ecology Center, a major backer of Measure D, saw Grillo's ruling in a different light, proclaiming in a news release Tuesday: "Measure D Holds Ground Against Industry-Funded Lawsuit."

"This lawsuit was an expensive tactic to bully Berkeley and distract from the fact that Big Soda's products are causing serious health epidemics in our community," Measure D supporter Eric Gorovitz says in the news release.

Sara Soka, campaign manager for the group Berkeley vs. Big Soda, said that "The language of the measure is settled and sound, and we are on a roll, picking up important community endorsements."