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Retailers sue to try and stop soda pop tax

Tuesday, June 27, 2017
Crain's Chicago Business
by Greag Hinz


Industry groups are taking one last stab, this time in court, at blocking a controversial penny-an-ounce Cook County tax on sweetened beverages that's scheduled to take effect July 1.

In a lawsuit filed in Cook County Circuit Court—which you can read below—the Illinois Retail Merchants Association and several individual stores ask the court to issue a restraining order and preliminary injunction that would prevent the tax from being collected.

The group says the levy as drafted violates the uniformity clause of the state constitution and is impermissibly vague. It also says retailers have not had enough time to prepare, given that rules on who has to pay have kept changing.

"This ordinance is incomplete, and it's a perfect example of the disaster that awaits policies that are hurried through without serious thought," IRMA CEO Rob Karr said in a statement. "If enacted, Cook County retailers would be unfairly exposed to lawsuits for failure to comply, and that's a situation we're not willing to accept."

A spokesman for Cook County President Toni Preckwinkle said she and her attorneys have not had time to review the filing but will "vigorously defend" the law.

Preckwinkle has said the measure would promote good health by fighting obesity, as well as provide an estimated $200 million to balance her 2018 budget. She has vowed to veto any effort by board members to repeal the tax.

Sugar? warrior? Michael? Bloomberg? pours? $1M? into? Cook? County's? anti-pop? push

The IRMA suit says the tax violates the uniformity clause because it applies to prepared drinks but not ones made fresh. For instance, it says, "A ready-to-drink sweetened ice tea served out of a chilled beverage urn is taxable, but not a sweetened iced tea that is shaken behind the counter before giving it to the customer."

Similarly, it says, the ordinance is vague because, among other things, it fails to distinguish between the nontaxable ice in, say, a 16-ounce cup filled with soda pop and the pop itself, "with either scenario leaving the retailer legally exposed."

Potentially the strongest argument, though, is the late decision that the levy cannot apply to food stamps, or SNAP purchases. The county has shuffled its rules on how to deal with that, leaving retailers short of time to satisfy both the county and federal laws that apply to such purchases.

The suit was filed by Jordan Goodman at Horwood Marcus & Berk, a Chicago law firm that specializes in state and local tax law. The case was assigned to Circuit Court Judge James McGing, with a hearing set for tomorrow morning.


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