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State Tax Update - Sept 22

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FOOD AND BEVERAGE

Sugar Tax:

California: Governing reports, “San Francisco's groundbreaking effort to curb soda consumption by requiring health warnings in display ads hit a judicial wall Tuesday when a federal appeals court barred enforcement, saying the messages were one-sided and would violate advertisers' freedom of speech. The city ordinance, the first of its kind in the nation, was passed unanimously by the Board of Supervisors in 2015 and was scheduled to take effect in July 2016 but has been put on hold by the courts during a legal challenge by the beverage industry. It would require display ads for sugar-sweetened drinks to devote 20 percent of their space to a warning that drinking such beverages "contributes to obesity, diabetes and tooth decay." The warning language would specify that the message comes from the city, not the advertiser. But the Ninth U.S. Circuit Court of Appeals in San Francisco said free speech includes the right of advertisers to refuse to convey warnings about their products, except when the warnings are clearly factual…The ruling overturned a decision in May 2016 by U.S. District Judge Edward Chen of San Francisco, who said the city's message was "factual and accurate" but agreed to delay enforcement of the ordinance while the industry appealed…”

Illinois: The Chicago Tribune reports, “billionaire Michael Bloomberg is prepared to spend millions of dollars to make sure backers of Cook County’s controversial soda pop tax don’t suffer defeat in next year’s elections, a spokesman for the former New York mayor said Monday. “Mike has made a commitment that he will do everything necessary to ensure that the elected officials who stood up against the soda industry are re-elected,” spokesman Howard Wolfson said. “And when I asked him what figure he had in mind for that purpose, his answer was, ‘Whatever it takes.’” Bloomberg’s announcement comes after a new political action committee calling itself Citizens for a More Affordable Cook County on Thursday announced its formation and intent to back County Board candidates “who will make the county more affordable for working families and easier for small businesses to thrive.” The group’s treasurer is well-known Democratic attorney Michael Kasper, who counts among his clients the American Beverage Association.”

The repeal vote of the Cook County sweetened beverage tax has been delayed and did not happen last Wednesday. The Finance Committee has the next move on October 10 while behind the scenes negotiations continue. Local news reports the various arguments used in support and opposition to the sweetened beverage tax at the county board meeting last week: “Sugar is deadlier than heroin and cocaine,” Sheila Hickland, Heart to Heart Ministry, said. “Lemonade sold in this building - the price was $2 I had to pay $0.25 in tax. There's no consistency in this,” Jim Garrett, Chicago Southland Convention & Bureau Center, said… “I don't believe it's the governments business to tell me if I have my grandchildren come over for a sleepover, I shouldn't buy Hawaiian Punch,” Mary Wener, Village of Worth Mayor, said. There is big money in this fight. Former New York Mayor Michael Bloomberg has pumped millions into ads touting the benefits of the pop tax, while Board President Toni Preckwinkle has been talking up the health concerns. “We have a real challenge in this County among public health issues, around diabetes, around heart disease,” Preckwinkle said. But Preckwinkle has framed the debate in another way -- warning Cook County needs the $200 million a year the tax is expected to raise. Without it, she says, the county will be forced to lay off workers. And she's warning the commissioners that a vote to repeal the tax is a vote for layoffs. “It's a vote to fire front line health care workers, doctors, nurses and counselors,” Preckwinkle said. While the soda industry and retailers rally against the tax, Commissioner Richard Boykin has led the political fight.”

The Chicago Sun Times reports, “Some retailers have seen their beverage sales decline by around 47 percent, according to numbers released to Can the Tax Coalition from the county’s retailers. The coalition, which receives funding from the American Beverage Association, teamed up with stores from the Illinois Food Retailers Association. Of the 32 stores that opted to share sales data with the coalition, 24 said that they had experienced sales declines of more than 20 percent. Thirteen of the retailers reported declines of more than 30 percent, and five said that their beverage sales have declined by 40 percent or more with the highest reported at 47 percent. The data is a comparison of sales from August 2016 to August 2017 to get a “year-over-year comparison” of sales before and after the penny-an-ounce tax went into effect, said David Goldenberg, a spokesman for Can the Tax.”

Oregon: Portland’s local news KGW reports the Coalition for Healthy Kids and Education began collecting signatures to gain support for a soda tax in Multnomah County. “The Coalition for Healthy Kids and Education needs to collect about 18,000 signatures to get the Multnomah County soda tax on the May 2018 ballot. The Coalition for Healthy Kids and Education is a group of doctors, parents, health experts and community leaders supporting kids in Multnomah County. “We need to turn the signatures in by December 15th,” said campaign manager Terri Steenbergen. “We are hoping to turn them in much earlier than that.” If approved, distributors of beverages will pay a tax of 1.5 cents per ounce on sugary drinks including soda, sports drinks, energy drinks, sweetened teas and other beverages that have added caloric sweeteners. This includes sugary syrup that would be added to sweet coffee drinks.” Steenbergen stated, “That money would go towards funding early childhood education and public health initiatives here in Multnomah County, in low-income communities and communities of color.” Half of the revenue will go toward expanding access to quality preschool programs for thousands of children, the group says. The remaining funds will be invested in programs that promote literacy, physical activity and healthy eating habits for kids. The proposed tax is similar to Seattle’s controversial sugary drink tax, passed earlier this year.” Multonomah County includes Portland and though smallest in area, it is the state's most populous county.

Oregon: The City of Seattle released its draft rules on the new sweetened beverage tax that takes effect Jan. 1, 2018. A public hearing on the rules is Sept. 26. The city hopes to have final rules by early November. Here are some of the key elements of the draft:

“Sweetened beverage” includes all drinks and beverages commonly referred to as soda, pop, cola, soft drinks, sports drinks, energy drinks, sweetened ice teas and coffees, and other products with added caloric sweeteners including but not limited to juice with added caloric sweetener, flavored water with added caloric sweetener, and non-alcoholic mix beverages that may or may not be mixed with alcohol or any other common names that are derivations thereof.

“Sweetened beverage" does not include any of the following: beverage with natural milk as the primary ingredient, beverages for medical use, liquid sold as a meal replacement for weight production, infant formula, alcoholic beverages, beverages with 100% natural fruit or vegetable juice with no added sweetener, concentrate used to combine with other ingredients to make a beverage, beverages with fewer than 40 calories per 12 ounce serving, “diet” beverages, and sweetened medication.

The draft provides more details on syrup, which is calculated based on finished product. The tax is based on manufacturer's instructions or industry practice where available. It would otherwise will be presumed that 1 ounce of syrup yields 12 ounces of finished product, unless the distributor can document otherwise.

The draft rules allow flexibility for a restaurant to attest to a distributor the use of the product, which can be used to establish the tax rate the distributor pays.

If a restaurant or retailer purchases sweetened beverages or syrups outside of Seattle city limits and sells them to consumers within city limits, the business is treated as a distributor and is liable for the tax.

The City also released a FAQ document that, in part, provides an overview of the tax, who pays it, the tax rate, when it takes effect, certification, exclusions.

LABOR

Pay Disclosure:

California: Bloomberg BNA reports, “Google Inc., Wells Fargo, and other companies with at least 500 employees in California would need to tell the state the mean and median pay for their male and female salaried employees under a bill on the way to Gov. Jerry Brown's (D) desk. The information the companies provide would be posted on the California secretary of state's website. The bill's author, Assemblywoman Lorena Gonzalez Fletcher (D), says the legislation (A.B. 1209) would help close the wage gap between men and women. “If nothing changes, the pay gap won't be reduced until 2043,” Gonzalez Fletcher said on the Assembly floor Sept. 11. She said recent amendments to the bill clarify that wage differentials between men and women aren't presumed to be violations of state labor laws. Companies can demonstrate valid reasons for the differentials, Gonzalez Fletcher said. Groups representing large employers remain opposed to the measure, saying in a Sept. 7 letter to lawmakers that its intent is to publicly shame employers and trigger lawsuits against them. More than 40 employer groups oppose the bill, including the California Chamber of Commerce, the California Bankers Association, the Motion Picture Association of America, CompTIA, and TechNet…Brown hasn't stated his position on the bills. He has until Oct. 15 to sign or veto them. The 2017 legislative session ends Sept. 15.”

Minimum Wage:

Massachusetts: Boston local news reports a legislative committee held a hearing on a bill to raise the state’s minimum wage to $15 an hour. In addition, “a group called Raise Up Massachusetts is gathering signatures to put the measure before voters next year if the state legislature doesn't act on it during the current session. In 2014, lawmakers approved a bill that raised the hourly minimum wage in three steps from $8 to the current $11. Despite that increase, advocates for low-income workers say many still live in poverty and struggle to provide for their families. The Massachusetts chapter of the National Federation of Independent Business says increasing the minimum wage to $15 would be "irresponsible." The group says it would result in fewer hours and fewer jobs for low-wage earners.”

Michigan: Detroit Free Press reports, “Organizers of a petition drive to raise Michigan’s minimum wage to $12 an hour by 2022 got the green light from the state Board of Canvassers Tuesday and will begin to collect signatures for the November 2018 ballot. The group – One Fair Wage of Michigan – is proposing gradually increasing the minimum wage to $12 by 2022, and for workers who receive tips, the minimum wage would get to $12 per hour by 2024. The effort has the jump on another effort, led by the Service Employees International Union in Michigan and across the nation, to raise the minimum wage to $15 an hour…The latest effort, spearheaded by the Restaurant Opportunities Center of Michigan, mirrors similar petition drives in 2006 and 2010 that were started but never appeared on the ballot. In those cases, Republicans in the Legislature didn’t want the issue appearing on the ballot and defused the effort by passing laws that raised the minimum wage… One Fair Wage has 180 days to gather at least 252,523 valid signatures of Michigan voters to qualify for the November 2018 ballot…The Michigan Restaurant Association said opposing the ballot proposal is a top priority and called the initiative "a misguided, out-of-touch and an outright dangerous proposal."”

Paid Leave:

Michigan: Local news in Flint, MI reports, “A Michigan group has launched its petition drive to force businesses to provide paid sick leave. The goal is to get the measure on the ballot next year. The Board of State Canvassers approved the petition last month, but MI-Time to Care held rallies across the state today, including Flint. Under the proposal, employees would accrue one hour of paid sick time for each 30 hours they work. Business groups like the Michigan Chamber of Commerce oppose the effort, warning additional mandated benefits could force employers to cut costs or consider layoffs. Those who support the petition say everyone can get sick, but not everyone can afford to get well. "So you have a restaurant worker who cannot afford to take a day off, has to come into work. And they're handling your meals, or washing your dishes. Then that passes on to whoever they serve." said Tomicka Robinson, Mothering Justice. MI-Time to Care will need to collect more than 250-thousand signatures in 180 days to put the proposal on the 2018 ballot.”

Minnesota: On September 18, the Minnesota Court of Appeals ruled that Minneapolis cannot require employers located outside the city limits to provide employees with paid sick days, but the city can continue to impose paid sick leave on businesses based in the city. Local news reports on the ruling, stating “The Minnesota Chamber of Commerce had fought the city's paid sick leave rules, calling them at conflict with state law. In a written statement, Chamber President Doug Loon described the latest ruling as a mixed victory for both sides. Loon said his organization will appeal the decision to the Minnesota Supreme Court. "We're pleased that the court prevented Minneapolis from imposing its ordinance on businesses that don't even have any physical presence in the city," Loon said. "At the same time, we're disappointed that the Court of Appeals allowed the underlying Minneapolis ordinance to stand." The Minneapolis ordinance, which applies to companies with six or more employees, took effect July 1. St. Paul officials have been tracking the legal case closely. Also effective July 1 for employers with 24 or more employees, Minnesota's capital city passed an even more aggressive paid sick leave mandate that applies to companies of all size. Small businesses have until Jan. 1, 2018, to implement the details. To block mandates in both cities, the Republican-led House and Senate passed a preemption measure this year, but DFL Gov. Mark Dayton vetoed the bill. Another legislative battle over the measure is possible in 2018.”

ALCOHOL

0.05 BAC:

Utah: The Salt Lake Tribune reports, “While he’s backed off plans to call a special legislative session this year to alter Utah’s new toughest-in-the-nation drunken driving law, Gov. Gary Herbert on Thursday outlined some major changes he would like to see next year. Those include imposing lighter penalties for those who barely exceed the new 0.05 percent blood alcohol limit for impairment, while continuing existing tougher punishment for those who violate the current 0.08 standard. Another option, Herbert said, may be to delay the effective date of the law — now set to kick in on Dec. 30, 2018— until after perhaps two or three other states pass similar legislation…When Herbert signed HB155, the DUI law, this year, he said he would likely call a special session of the Legislature in late summer to fix problems with it. He said Thursday he now figures that the Legislature has plenty of time to deal with it in its general session that convenes in January before the law takes effect. “We’ve had a number of hearings on it. The Legislature is more inclined to address this in a general session. It probably requires a little more robust thinking” than could happen in a one-day special session, Herbert said..”

Ignition Interlocks

South Carolina: Local news reports, “It's supposed to make it easier to put drunk drivers behind bars, but some say a South Carolina law actually makes it easier for them to go free. Now, Mothers Against Drunk Drivers is hoping new research will help change that… The state is one of the worst states in the whole country for drunk driving deaths, and that's not all. MADD is mad about how South Carolina handles cases against those accused of drunk driving. That's why members started sitting in South Carolina courtrooms to monitor DUI cases and their outcomes. They say their findings suggest too many drunk drivers are getting off because South Carolina makes it too difficult to convict them.” It further reports, “MADD is asking state leaders to "amend the state's dash cam video recording statute so that the other evidence in a DUI arrest can be used even when there is a problem with the video." MADD is also asking for "more aggressive prosecution of DUI cases so that more are held accountable with the appropriate penalties and not plead down to reckless driving charges that do not keep the public as safe from repeat offenses."… Another recommendation is to strengthen "Emma's Law." It puts DUI offenders with a blood-alcohol level of 0.15 or higher on the Ignition Interlock Program. It will only let them drive after passing breathalyzer. MADD wants all convicted drunk drivers required to have one because the group considers it "the most effective available approach to reducing repeat offenses." …”

Wisconsin: The Courier, local news in WI, reports “a state Senate committee heard emotional testimony on a series of bills looking to tighten penalties on drunken drivers, as citizens and legislators called on members to further safeguard the roads. Bill author Rep. Jim Ott noted while the number of alcohol-related crashes has been going down, giving the impression the current penalties are a sufficient deterrent for drunken driving, the numbers don't show how "many, many families in our state have been devastated by drunk drivers."…Two of those bills passed an Assembly committee this spring. One would send a person convicted of killing someone while driving drunk to prison for at least five years, while the other bill would increase the minimum incarceration time for fifth and sixth OWI offenders. The third bill, which passed the full Assembly in May, would make changes to ignition interlock device requirements and require the operating restriction takes effect immediately, rather than when the Department of Transportation re-issues the offender a driver's license… It remains unclear which OWI-related bills are most likely to pass both chambers and get Gov. Scott Walker’s signature.”

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