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AMENDED IN ASSEMBLY APRIL 7, 2011

INTRODUCED BY Assembly Member Monning
( Coauthor: Assembly Member
Ammiano
)

FEBRUARY 17, 2011

An act to add Part 14.5 (commencing with Section 32600) to
Division 2 of the Revenue and Taxation Code, relating to taxation.


LEGISLATIVE COUNSEL'S DIGEST


AB 669, as amended, Monning. Taxation: sweetened beverage tax:
Children's Health Promotion Fund.
Existing law imposes various taxes, including taxes on the
privilege of engaging in certain activities. The Fee Collection
Procedures Law, the violation of which is a crime, provides
procedures for the collection of certain fees and surcharges.
This bill would , on and after July 1, 2012, impose a
tax on every distributor, as defined, for the privilege of
distributing in this state bottled sweetened beverages,
sweetened beverages,
at a rate of $0.01 per fluid
ounce
and for the privilege of distributing
concentrate in this state, either as concentrate or as sweetened
beverages derived from that concentrate,
at the rate of $0.01
per fluid ounce on bottled sweetened beverages and sweetened
beverages distributed in this state, or at the rate of $0.01 per
fluid ounce
of sweetened beverage to be produced from
concentrate distributed in this state . The tax
would be administered by the State Board of Equalization and would be
collected pursuant to the procedures set forth in the Fee Collection
Procedures Law. This bill would exempt from the tax, among other
things, the distribution in this state of bottled sweetened beverages
, sweetened beverages, or concentrate made by a
distributor to another distributor registered with the board and
supported by an exemption certificate that consists of a statement
signed under penalty of perjury.
By expanding the definition of the existing crime of perjury and
by expanding the application of the Fee Collection Procedures Law,
the violation of which is a crime, this bill imposes a state-mandated
local program.
The bill would require the board to deposit all taxes, penalties,
and interest collected, less refunds and administrative costs, in the
Children's Health Promotion Fund, which this bill would create. This
bill would require all moneys in the fund, upon appropriation by the
Legislature, to be allocated to the State Department of Public
Health and Superintendent of Public Instruction, as specified, for
the purposes of statewide childhood obesity prevention activities and
programs. This bill would also authorize the Director of the State
Department of Public Health and the Superintendent of Public
Instruction to make rules and regulations, and provide procedural
measures, to bring into effect those purposes.
This bill would make legislative findings and declarations
relating to the consumption of sweetened beverages, childhood
obesity, and dental disease.
This bill would include a change in state statute that would
result in a taxpayer paying a higher tax within the meaning of
Section 3 of Article XIII A of the California Constitution, and thus
would require for passage the approval of 2/3 of the membership of
each house of the Legislature.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the
following:
(a) The prevalence of obesity in the United States has increased
dramatically over the past 30 years. From the 1960s to the late
1970s, prevalence was relatively constant, with about 15 percent of
the population classified as obese. After the 1970s, these rates
began to climb. By 2006, 23.3 percent of Americans were considered
obese. In California, obesity rates have increased even more, rising
from 8.9 percent in 1984 to 25.5 percent in 2010. Although no group
has escaped the epidemic, ethnic minorities and the poor are
disproportionately affected.
(b) The rate of children who are overweight has also increased
dramatically in recent decades. After being relatively constant from
the 1960s to the 1970s, the prevalence of overweight children has
more than quadrupled among children between 6 and 11 years of age and
nearly tripled among those between 12 and 19 years of age.
(c) The obesity epidemic is of particular concern because obesity
increases the risk of diabetes, heart disease, certain types of
cancer, arthritis, asthma, and breathing problems. Depending on their
level of obesity, from 60 percent to over 80 percent of obese adults
have type 2 diabetes, high blood cholesterol, high blood pressure,
or other related conditions. It has been reported that up to 60
percent of obese children 5 to 10 years of age have early signs of
heart disease.
(d) Type 2 diabetes, previously only seen among adults, is now
increasing among children. If the current obesity trends are not
reversed, it is predicted that one in three children and nearly
one-half of Latino and African American children born in the year
2000 will develop type 2 diabetes in their lifetime. Research shows
that overweight children have a much greater chance of being obese as
adults, with all the health risks that entails.
(e) Overweight and obesity account for $147 billion in health care
costs nationally, or 9 percent of all medical spending - with half
these costs paid publicly through the Medicare and Medicaid programs.

(f) In 2006, overweight and obesity-related costs in California
were estimated at almost $21 billion.
(g) There is overwhelming evidence of the link between obesity and
consumption of sweetened beverages such as soft drinks, energy
drinks, sweet teas, and sports drinks. California adults who drink a
soda or more per day are 27 percent more likely to be overweight or
obese, regardless of income or ethnicity.
(h) According to nutritional experts, sweetened beverages such as
soft drinks, energy drinks, sweet teas, and sport drinks offer little
or no nutritional value, but massive quantities of added sugars. For
example, a 20-ounce bottle of soda contains the equivalent of
approximately 17 teaspoons of sugar. Yet, the American Heart
Association recommends that Americans consume no more than five to
nine teaspoons of sugar per day.
(i) Research shows that almost one-half of the extra calories
Americans have been consuming since the 1970s could come from soda,
with the average American drinking nearly 50 gallons of sweetened
beverages a year, the equivalent of 39 pounds of extra sugar every
year.
(j) Americans are drinking more sweetened beverages than ever
before. From 1977 to 2002, Americans doubled the amount of sweetened
beverages they consumed. Currently, children and adult Americans
consume 172 and 175 calories respectively from sweetened beverages a
day. Children and adolescents now consume 10 to 15 percent of their
daily caloric intake from sweetened beverages.
(k) Research shows that 41 percent of California children 2 to 11
years of age and 62 percent of California teens 12 to 17 years of age
drink soda daily, and for every additional serving of sweetened
beverage that a child consumes a day, the likelihood of the child
becoming obese increases by 60 percent.
(l) Dental caries (tooth decay) is the most common chronic
childhood disease, experienced by more than two-thirds of California'
s children. Children who frequently or excessively consume beverages
high in sugar are at increased risk for dental caries. Untreated
dental caries can lead to pain, infection, tooth loss, and in severe
cases, even death. It can slow normal growth and development by
restricting nutritional intake. Children who are missing teeth may
have chewing problems that limit their food choices and result in
nutritionally inadequate diets.
(m) It is the intent of the Legislature, by adopting the Sweetened
Beverage Tax Law and creating the Children's Health Promotion Fund,
to diminish the human and economic costs of obesity and dental
disease in California. This act is intended to discourage excessive
consumption of sweetened beverages by increasing the price of these
products and by creating a dedicated revenue source for health
programs designed to prevent and treat childhood obesity and dental
disease and reduce the burden of attendant health conditions.
SEC. 2. Part 14.5 (commencing with Section 32600) is added to
Division 2 of the Revenue and Taxation Code, to read:

PART 14.5. SWEETENED BEVERAGE TAX LAW


32600. This part shall be known and may be cited as the Sweetened
Beverage Tax Law.
32601. For purposes of this part:
(a) "Beverage container" means any closed or sealed container
regardless of size or shape, including, without limitation, those
made of glass, metal, paper, plastic, or any other material or
combination of materials.
(b) "Bottled sweetened beverage" means a sweetened beverage
contained in a beverage container.
(c) "Beverage dispensing machine" means a device which mixes
concentrate with any one or more other ingredients and dispenses the
resulting mixture into an open container as a ready-to-drink
beverage.

(c)

(d) "Caloric sweetener" means any caloric substance
suitable for human consumption that humans perceive as sweet and
includes, without limitation, sucrose, fructose, including high
fructose corn sweetener, glucose, other sugars, and fruit juice
concentrates. "Caloric" means a substance that adds calories to the
diet of a person who consumes that substance.
(d)

(e) "Concentrate" means a syrup, simple syrup,
powder, or base product containing caloric
sweetener
that is used for mixing, compounding, or making
sweetened beverages in a beverage dispensing machine . For
purposes of this part, "concentrate" does not include any of the
following:
(1) Any product that is solely used in preparing coffee or tea.
(2) Any product for consumption by infants and which is commonly
referred to as "infant formula."
(3) Any product for use for weight reduction.
(4) Any product containing milk or milk products or plant proteins
sources.
(5) Any frozen concentrate or freeze-dried concentrate to which
only water is added to produce a sweetened beverage containing more
than 10 percent natural fruit juice or more than 10 percent natural
fruit juice.
(6) Any product that is sold and is intended to be used for the
purpose of an individual consumer mixing a sweetened beverage.
(7) Medical food.
(8) Any product to which no caloric sweeteners have been added.

(e)

(f) "Consumer" means a person who purchases a bottled
sweetened beverage or concentrate for a purpose other than resale in
the ordinary course of business.
(f)

(g) "Distribution" includes:
(1) The sale in this state of bottled sweetened beverages,
sweetened beverages, or concentrate to a person who will make a
subsequent retail sale.

(2) The receipt in this state of untaxed bottled sweetened
beverages, sweetened beverages, or concentrate by a retailer who will
make a subsequent retail sale.

(3) The sale in this state of untaxed bottled sweetened beverages,
sweetened beverage, or concentrate by a retailer to a consumer.

(4) The storage, use, or other consumption in this state of
untaxed bottled sweetened beverages, sweetened beverages, or
concentrate by a person.

(1) The sale of bottled sweetened beverages or concentrate to a
retailer.

(2) The receipt of untaxed bottled sweetened beverages or
concentrate in this state from an unregistered out-of-state
distributor by a retailer.

(g)

(h) "Distributor" means any person who makes a
distribution of bottled sweetened beverages, sweetened beverages, or
concentrate in the state, whether or not that person also sells these
products to consumers.
(h)

(i) "Medical food" means medical food as defined in
Section 109971 of the Health and Safety Code.
(i)

(j) "Milk" means natural liquid milk, regardless of
animal source or butterfat content, natural milk concentrate, whether
or not reconstituted, regardless of animal source, plant source, or
butterfat content, or dehydrated natural milk, whether or not
reconstituted and regardless of animal source or butter fat content.

(j)

(k) "Natural fruit juice" means the original liquid
resulting from the pressing of fruit, the liquid resulting from the
reconstitution of natural fruit juice concentrate, or the liquid
resulting from the restoration of water to dehydrated natural fruit
juice.
(k)

(l) "Natural vegetable juice" means the original liquid
resulting from the pressing of vegetables, the liquid resulting from
the reconstitution of natural vegetable juice concentrate, or the
liquid resulting from the restoration of water to dehydrated natural
vegetable juice.
(l)

(m) "Nonalcoholic beverage" means any beverage not
subject to tax under Part 14 (commencing with Section 32001).

(m)

(n) "Person" means an individual, trust, firm, joint
stock company, business concern, business trust, receiver, trustee,
syndicate, social club, fraternal organization, estate, corporation,
including, but not limited to, a government corporation, partnership,
limited liability company, and association or any other group or
combination acting as a unit. "Person" also includes any city,
county, city and county, district, commission, the state, or any
department, agency, or political subdivision thereof, any interstate
body, and the United States and its agencies and instrumentalities to
the extent permitted by law.
(n)

(o) "Powder" or "base product" means a solid mixture of
ingredients used in making, mixing, or compounding sweetened
beverages by mixing the powder or base product with any one or more
other ingredients, including, without limitation, water, ice, syrup,
simple syrup, fruits, vegetables, fruit juice, vegetable juice, or
carbonation or other gas.
(o)

(p) "Retail sale" means the sale of bottled sweetened
beverages or sweetened beverages to a consumer.
(p)

(q) "Retailer" means any person who sells in this state
bottled sweetened beverages or sweetened beverages to a consumer,
whether or not that person is also a distributor as defined in this
section.
(q)

(r) "Sale" means the transfer of title or possession
for consideration in any manner or by any means whatever.
(r)

(s) "Simple syrup" means a mixture of sugar and water.

(s)

(t) (1) "Sweetened beverage" means any sweetened
nonalcoholic beverage sold for human consumption that contains any
added caloric sweeteners, including, but not limited to, the
following: soda water, ginger ale, root beer, all beverages commonly
referred to as cola, lime, lemon, lemon-lime, and other flavored
beverages, including any fruit or vegetable beverage containing 10
percent or less natural fruit juice or natural vegetable juice, and
all other drinks and beverages commonly referred to as "soda," "soda
pop," and "soft drinks."
(2) "Sweetened beverage" does not include any of the following:
(A) Any product sold in liquid form for consumption by infants,
which is commonly referred to as "infant formula."
(B) Any product sold in liquid form for use for weight reduction.
(C) Water, to which no caloric sweeteners have been added.
(D) Any product containing milk or milk products or plant protein
sources.
(E) Medical food.
(F) Coffee or tea.
(t)

(u ) "Syrup" means the liquid mixture of
ingredients used in making, mixing, or compounding sweetened
beverages using one or more other ingredients including, without
limitation, water, ice, a powder, simple syrup, fruits, vegetables,
fruit juice, vegetable juice, or carbonation or other gas.
32602. (a) There is hereby imposed an excise
tax on every distributor for the privilege of distributing bottled
sweetened beverages , sweetened beverages, and
concentrate in the state, calculated as follows:
(1)

(a) The tax on bottled sweetened beverages and
sweetened beverages
distributed in this state shall be one
cent ($0.01) per fluid ounce.
(2)

(b) The tax on concentrate distributed in this state
either as concentrate or as a sweetened beverage derived from
that concentrate,
shall be equal to one cent ($0.01) per fluid
ounce of sweetened beverage to be produced from
that concentrate. For purposes of calculating the tax for
concentrate, the volume of sweetened beverage to be produced from
concentrate shall be the largest volume resulting from use of the
concentrate according to any manufacturer's instructions.
(b) Every distributor subject to the tax imposed pursuant to
subdivision (a) shall separately state the amount of tax due to the
board by the distributor on the receipt, invoice, or other form of
accounting of the transaction given to the retailer.

32603. Each distributor shall include the following information
on each receipt, invoice, or other form of accounting for the
distribution of bottled sweetened beverages , sweetened
beverages,
or concentrate:
(a) The name and address of the distributor.
(b) The name and address of the purchaser.
(c) The date of sale and invoice number.
(d) The kind, quantity, size, and capacity of packages of bottled
sweetened beverages, sweetened beverages, or concentrate sold.
(e) The amount of excise taxes due to the board from the
distributor on the sale of the bottled sweetened beverages ,
sweetened beverages,
or concentrate.
(f) Any other information as required by the board.
32604. There is exempt from the taxes imposed by this part the
distribution of bottled sweetened beverages , sweetened
beverages,
or concentrate distributed by a distributor to:
(a) A distributor registered with the board under this part when
supported by a properly completed exemption certificate.
(b) To a person when, pursuant to the contract of sale, the
bottled sweetened beverages , sweetened beverages
or concentrates are required to shipped and are shipped to a point
outside of this state by the distributor by means of any of the
following:
(1) Facilities operated by the distributor.
(2) Delivery by the distributor to a carrier, customs broker, or
forwarding agent, whether hired by the purchaser or not, for shipment
to the out-of-state point.
(c) To a person where the state is prohibited from taxing that
sale, use, or consumption under the Constitution or laws of the
United States or under the Constitution of this state.
32605. The exemption certificate to be provided by a distributor
to another distributor as required by subdivision (a) of Section
32604 shall consist of a statement that is signed under penalty of
perjury by a person with authority to bind the distributor. The
certificate shall be dated and include the distributor's name and
account number. A new certificate shall be given if any information
in the current certificate changes. The certificate may be included
as part of any business records normally used to document a sale or
distribution.
32606. A distributor who has paid a tax, either directly to the
state or to another distributor registered under this part, and makes
a subsequent distribution of bottled sweetened beverages ,
sweetened beverages,
or concentrate may claim a credit on
its return for the period in which the subsequent sale or
distribution occurs.
32607. The board shall administer and collect the tax imposed by
this part pursuant to the Fee Collection Procedures Law (Part 30
(commencing with Section 55001)). For purposes of this part, the
references in the Fee Collection Procedures Law to "fee" shall
include the tax imposed by this part and references to "feepayer"
shall include a person required to pay the tax imposed by this part.

32608. The board may prescribe, adopt, and enforce any

32608. (a) The board may prescribe, adopt, and
enforce regulations relating to the administration and enforcement of
this part, including, but not limited to, collections, reporting,
refunds, and appeals.

(b) The board may prescribe, adopt, and
enforce any
emergency regulations as necessary to implement
this part. Any emergency regulation prescribed, adopted, or enforced
pursuant to this section shall be adopted in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, and, for purposes of that chapter,
including Section 11349.6 of the Government Code, the adoption of the
regulation is an emergency and shall be considered by the Office of
Administrative Law as necessary for the immediate preservation of the
public peace, health and safety, and general welfare.
32609. The taxes imposed by this part are due and payable to the
board quarterly on or before the last day of the month next
succeeding each quarterly period.
32610. (a) On or before the last day of the month following each
quarterly period of three months, a return for the preceding
quarterly period shall be filed using electronic media
with the board.
(b) The board may prescribe those forms and reporting requirements
as are necessary to implement the tax, including, but not limited
to, information regarding the total amount of bottled sweetened
beverages , sweetened beverages, and concentrate
sold and the amount of tax due.
(c) Returns shall be authenticated in a form or pursuant to
methods as may be prescribed by the board.

32610.5. Every person required to pay the tax imposed under this
part shall register with the board. Every application for
registration shall be made upon a form prescribed by the board and
shall set forth the name under which the applicant transacts or
intends to transact business, the location of his or her place or
places of business, and such other information as the board may
require. An application for an account shall be authenticated in a
form or pursuant to methods as may be prescribed by the board.

32611. (a) There is hereby created a trust fund in the State
Treasury called the Children's Health Promotion Fund. The Children's
Health Promotion Fund shall consist of all taxes, interest,
penalties, and other amounts collected pursuant to this part, less
refunds and reimbursement to the board for expenses incurred in the
administration and collection of the tax.
(b) All moneys in the Children's Health Promotion Fund shall, upon
appropriation by the Legislature, be allocated for the purposes of
statewide childhood obesity prevention activities and programs as
follows:
(1) Twenty percent to the State Department of Public Health to
coordinate statewide childhood obesity prevention activities and to
fund state-level childhood obesity prevention and children's dental
programs. This funding shall support programs that use educational,
environmental, policy, and other public health approaches that
achieve the following goals: improve access to and consumption of
healthy, safe, and affordable foods and beverages; reduce access to
and consumption of calorie-dense, nutrient-poor foods; encourage
physical activity; decrease sedentary behavior; and raise awareness
about the importance of nutrition and physical activity to childhood
obesity prevention.
(2) Thirty-five percent for community-based childhood obesity
prevention programs. This funding shall support programs that use
educational, environmental, policy, and other public health
approaches that achieve the following goals: improve access to and
consumption of healthy, safe, and affordable foods and beverages;
reduce access to and consumption of calorie-dense, nutrient-poor
foods; encourage physical activity; decrease sedentary behavior; and
raise awareness about the importance of nutrition and physical
activity to childhood obesity prevention. The State Department of
Public Health shall be responsible for the distribution of these
funds to community-based organizations and to local health
departments, with priority given to counties that have established
childhood obesity prevention coalitions to build political support
for programs.
(3) Ten percent to evidence-based prevention, early recognition,
monitoring, and weight management intervention activities in the
medical setting. The State Department of Public Health shall be
responsible for identifying activities and allocating these funds.
(4) Thirty-five percent to elementary and secondary schools for
educational, environmental, policy and other public health approaches
that promote nutrition and physical activity. The approaches funded
pursuant to this paragraph can include improving or building school
recreational facilities that are used for recess and physical
education; providing continuing education training for physical
education teachers; hiring qualified physical education teachers;
implementing Safe Routes to Schools programs; improving the quality
and nutrition of school breakfasts, lunches, and snacks; ensuring
free, clean drinking water access throughout the schoolday; and
incorporating practical nutrition education into the curriculum. The
Superintendent of Public Instruction is responsible for the
allocation and distribution of these funds.
(c) All moneys in the Children's Health Promotion Fund shall be
expended only for the purposes expressed in this chapter, and shall
be used only to supplement existing levels of service and not to
supplant current federal, state, or local funding for existing levels
of service.
(d) The Director of the State Department of Public Health and the
Superintendent of Public Instruction are hereby authorized to make
such rules and regulations, and provide such procedural measures, as
shall bring into effect the purposes of this section. The rules and
regulations may provide for specific programs to be funded consistent
with the allocation of funds set forth above.
32612. This part shall become operative on July 1, 2012.

SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.