OAKLAND, CALIF. — Cultiva La Salud and Martine Watkins, with support from ChangeLab Solutions and the American Heart Association, on Aug. 10 filed a lawsuit seeking to overturn California’s 2018 preemption law that limits local governments from passing new policies, such as soda taxes.

The action was filed in the Superior Court of California by Jarvis, Fay & Gibson, LLP, on behalf of Cultiva La Salud, an organization dedicated to creating health equity in the San Juaquin Valley of California, and Ms. Watkins, a resident of Santa Cruz, Calif., and a member of the Santa Cruz City Council. The lawsuit contends that the 2018 California statute, which was supported by the beverage industry, oversteps its bounds by unlawfully penalizing charter cities that exercise their constitutionally-protected authority to manage municipal affairs, including taxation, based on a provision that effectively takes away a city’s sales tax revenue if it enacts a sugary drink tax, jeopardizing “millions of dollars for that community.”

The preemption doctrine maintains that laws from higher authorities will displace laws of lower authorities when there is a conflict between the two.

“It is imperative that local governments have decision-making power and all tools at their disposal to protect the health and safety of their residents, especially during this time of COVID-19,” said Sarah de Guia, JD, chief executive officer of ChangeLab Solutions. “Abusive laws like this one harm families and communities, and they should have no place in California or anywhere else. Two years ago, the beverage industry strong-armed the legislature to push through a measure that protects their profits but hurts public health. The court should strike down this blatantly illegal law.”

The 2018 statute prevents cities from enacting new sugary drink taxes until 2031. California cities, including San Francisco, Berkeley, Oakland and Albany, with so-called “soda taxes” in place prior to the 2018 statute were allowed to keep those taxes.

“Sugary drink taxes have had a demonstrably positive impact in the communities that enacted them,” said John Maa, MD, a general surgeon at MarinHealth Medical Center and board member of the American Heart Association. “Localities should be able to enact laws that promote health and equity while helping communities and local businesses thrive.”

The timing of the lawsuit coincides with the current coronavirus pandemic, which it contends magnifies the need for freedom of local government control and is intended to go beyond soda taxes. Possible areas of impact include paid sick leave, broadband access, affordable housing, food insecurity, clean drinking water and other issues that often are magnified in low income and communities of color.

“Some of the most significant public health policies of the past few decades — from smoke-free air laws to sugary drink taxes — started in a single community and then spread across the country,” said Genoveva Islas, MPH, founder and executive director of Cultiva La Salud. 

Several states in addition to California have preemption laws in place. Some individual cities and municipalities also have soda taxes on the books, although the implementation of such taxes has slowed in the past couple of years.

The American Beverage Association noted that more than 40 taxes on beverages have been proposed or rejected over the past several years.

“We may disagree with some in the public health community on discriminatory taxes, but we agree that we must work on comprehensive solutions to public health challenges,” the ABA said. “Instead of going to the healthiest cities to propose a tax, we’re going to communities with the highest rates of obesity in the country and working hand-in-hand with community leaders and public health groups to cut sugar consumption.”