Joining IBWA as plaintiffs in this lawsuit are Nestle Waters North America Inc. and The Polar Corp. [image-nocss] d/b/a Polar Beverages.
The Bottle Bill, originally passed in 1982, is intended to encourage recycling and to reduce litter and waste. It requires consumers to pay a five cent deposit when purchasing certain bottled beverages and permits consumers to obtain a refund of that deposit by returning the empty bottle to the retailer.
The association said that it strongly supports the Bottle Bill's goal of encouraging recycling and environmental conservation and is not challenging the deposit requirement or the recycling portions of the Bottle Bill. Rather, the IBWA lawsuit concerns the new labeling requirements, unrealistic effective date and special exemptions granted to certain IBWA members' competitors in the recent Bottle Bill amendments.
Under the new Bottle Bill, all bottles covered by the law must contain a special New York specific bar code. The law prohibits bottles with that New York bar code from being sold in other states, even if those states' laws would permit the sale. IBWA believes that the New York bar code requirement is unconstitutional because it controls commerce occurring in other states.
While the new Bottle Bill applies to nearly all forms of bottled water, including flavored water, vitamin water and water containing artificial sweeteners, it creates an exception for bottled water products that have sugar added. The new Bottle Bill gives no reason why water with sugar should not be covered by the law when all other forms of water are covered. Indeed, the sugar water exception runs counter to the important environmental goals of the Bottle Bill. IBWA said it believes this arbitrary exception, which gives special preference to companies that sell sugar water products, violates the U.S. Constitution's Equal Protection Clause.
IBWA said it also seeks a reasonable amount of time for its members to comply with the new Bottle Bill, which is set to take effect in just a few weeks, on June 1, 2009. The new Bottle Bill imposes a number of different requirements on IBWA members, including the need to design new product labels, register those labels with the state, implement a distribution system that ensures New York-labeled bottles are offered for sale only in New York, and create a process to handle redemption of empty bottles by consumers.
IBWA members are unable to prepare for all these complex requirements in such a short time (less than 60 days after the law was passed), the group said. The original law provided the soft drinks and beer industries 15 months to comply with a far simpler system than the recently enacted changes. IBWA has asked the court to prevent the new Bottle Bill from taking effect for a reasonable period of time sufficient for its members to prepare for the law's new requirements.
Bottled water is a safe, healthy, convenient food product, IBWA said. "The new bottled deposit law is not in the public interest because it will discourage and possibly prevent consumers from making a healthy beverage choice. By including an arbitrary exception for water products that have sugar added, the new law provides financial disincentives for consumers to drink bottled water. We should be creating incentives for consumers to drink healthy beverages, such as bottled water, instead of making them more expensive."
The group added that because it will be impossible for companies to meet the law's June 1 effective date, it is likely that New York consumers may soon not even be able to find bottled water on their store shelves.
The suit was filed in U.S. District Court in Manhattan.
Supporting the legal challenge to the Bottle Bill, Nestle Waters North America CEO Kim Jeffery issued the following statement:
"Nestle Waters North America has a history of supporting recycling efforts, and we support environmentally sound bottle deposit laws. We believe the best ones encourage recycling of all containers, do not hurt consumers, and do not favor special interests. The New York Bottle Bill fails all three tests. Moreover, the new law is unconstitutional, and a solid foundation is needed to build a lasting and effective recycling program."
"We can stand behind a bottle bill that promotes a convenient and comprehensive recycling program, but the current law actually hurts community based recycling efforts by removing a critical revenue source from curbside recycling. Also, unlike other bottle bills that return funds from deposit programs to community recycling programs, the funds generated by this law would be earmarked by Albany for unrelated items."
"Even more inexplicable is the competitive advantage the bill gives to non-carbonated, sugar-filled drinks over healthier options like bottled water. In its current form, this bill makes some high calorie beverages more affordable for consumers. We need a bill that promotes healthy, convenient options for consumers and parents."
"We would prefer that the legislature fix these problems, but the deadline for compliance is fast approaching, and we need to ensure we can provide bottled water to our customers. All over the country, there are good examples of bottle bills that work for consumers and for the environment. We don't need to settle for one that discourages both healthy choices and environmental stewardship."
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