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Soda tax battle: How Jim Kenney is planning to win a court challenge

Mayor Jim Kenney acknowledged to Temple students a legal challenge over an enacted soda tax was a “very real possibility.”

Let’s say Mayor Jim Kenney proves more persuasive than soda lobbyists and convinces City Council to approve his recently proposed soda tax. Clear sailing from there, right? Not quite. It’s possible, even likely, the soda industry would mount a legal challenge and attempt to overturn the law.      

Even Kenney apparently believes such a scenario could unfold. He recently appeared in former Mayor John Street’s Temple University government class as a guest speaker, and Street confirmed Kenney acknowledged to students a legal challenge over an enacted soda tax was a “very real possibility.”   

Street, who has closely watched Kenney’s soda tax but not offered a direct opinion, said over email Kenney also expressed the belief the city could withstand such a legal challenge. Kenney’s director of communications, Lauren Hitt, said “the Mayor articulated that he’s prepared for such a challenge should it occur.”   

A soda tax hasn’t been passed anywhere in the United States except for Berkeley, Calif. Though the soda industry was expected to challenge the bill, it never did.

In New York, the American Beverage Association surprised most legal experts and successfully defeated former Mayor Michael Bloomberg’s law banning soda containers larger than 16 ounces in court. Judge Milton Tingling struck down the law, arguing loopholes, such as exempting diet sodas and allowing certain locations to still serve bigger drinks, defeated “the stated purpose of the rule.” An appeals court and New York’s highest court upheld the ruling. Bloomberg’s law differed from what might happen in Philadelphia not only in that it was a ban of big drinks but also because it was passed by a Bloomberg-appointed health board rather than by New York’s City Council. Tingling and higher courts contended only Council had the power to pass such a measure.    

Mark Zecca, an attorney who worked for the city for more than 20 years, said a soda tax passed in Philadelphia could face challenges on whether the city leaders have authority to do so and whether it violates the uniformity clause of Pennsylvania’s constitution. The uniformity clause stipulates all taxes must be uniform “upon the same class of subjects.”

“Does Philly have authority to pass a tax on soda?” Zecca said. “Until it’s tested you don’t know. You can’t know for sure. You figure the law department has looked at it….With a high-money client it could bounce the other way.”

City Solicitor Sozi Tulante said he’s convinced Council can pass the measure. Pennsylvania, he said, has no state laws conflicting with the soda tax proposal, giving Council the authority to do it. As for the possibility of problems with Pennsylvania’s uniformity clause because diet sodas aren’t being taxed, Tulante said the clause allows for distinctions to be made within a class that would fit in this particular case.

His department still wouldn’t be surprised by a legal challenge.  

“There has never been a controversial law,” said Richard Feder, chief deputy city solicitor, “where somebody doesn’t say, ‘That’s illegal we’re going to sue.’”

Convincing Council the soda tax would survive a legal challenge could be important for Kenney’s administration. In 2011, for Nutter’s similar proposal, legal reasons contributed to Councilman Bill Greenlee’s reticence to approve the law. He told Newsworks, “One of my problems with the soda tax was I questioned whether it was legal or not.”

Larry Miller, spokesman for the No Philly Grocery Tax Coalition, said he could envision legal problems with Kenney’s proposal, given what he has seen as a lack of attention to detail so far.   

“It’s apparent,” he said, “the Mayor didn’t even realize there was a higher rate with fountain drinks in the legislation.”

Street said anticipating the legal outcome of a possible challenge would be difficult but noted Kenney might have an advantage if a legal challenge went the distance.

“For the Mayor,”he said, “the recent addition of three Democrats to the Pennsylvania Supreme Court is comforting but not a lock.”

Update: An earlier version of this article contained a misspelling of the name Richard Feder. 

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