Congress Considers a National "Bottle Bill"

Perhaps the most visible evidence of a popular ethic of discarding materials rather than recycling them, beverage containers litter American highways and city streets in distressingly high numbers. The "Keep America Beautiful" campaign and similar appeals to consumers' consciences have not eliminated the problem. Aesthetic concerns, greater awareness of the energy savings that result from reuse of manufactured items, and the growing cost of municipal solid waste disposal have all increased state and federal interest in legislation designed either to ban outright the sale of nonreturnable beverage containers or to create strong economic incentives for the manufacture of returnable containers.Both Vermont and Oregon have passed "bottle bill" legislation to deal with the container problem, and those statutes have been upheld by the courts against challenges by container manufacturers, bottlers, and retailers. Numerous municipalities have enacted similar legislation, with varying success in the courts.¹ Along with the broader problem of dealing with the nation's solid wastes, Congress is presently considering several alternative bottle bills.

EPA has recently identified three major types of legislation designed to solve the beverage container problem.² Methods include a mandatory deposit system for all beverage containers, a ban on production and sale of non-refillable containers, and litter taxes on containers to finance litter cleanup. Due to present technological difficulties in separating recyclable waste products from the mass of consumer solid waste, methods designed to reduce the output of litter, such as the first two, are considered by environmentalists to be preferable to schemes for financing litter collection. Industry spokesmen have opposed all measures other than a small litter tax on each container, claiming that increases in consumption of their products over the past years have resulted largely from the "convenient and attractive" nonreturnable packaging.

Nine beverage container bills have been introduced in Congress, with only one, S. 2062, authored by Senator Mark Hatfield, pending before the Senate. In the House, both the Committee on Interstate and Foreign Commerce and the Committee on Ways and Means have held hearings on container legislation. The three bills now before the Ways and Means Committee³ take somewhat different approaches. One would ban all one-way carbonated and malt beverage containers (one-way defined as a container without a ten cent refundable deposit)⁴; another would require the Secretary of the Treasury to prescribe regulations under which "to the maximum extent the Secretary determines practicable" all alcoholic beverage containers shall be reusable⁵; a third would place so high a tax on nonreturnable beverage containers as to make them prohibitively expensive, require a minimum five cent deposit on returnable beer, wine, or carbonated beverage containers, and provide for a system to coordinate return of bottles for reuse or recycling.⁶ Two bills would rely upon enforcement provisions of the Internal Revenue Code⁷ and one provides for a $1000 fine per violation, each offending container constituting a separate violation.⁸ None of the three bills has been reported out of the Committee, and lobbyists following the progress of the beverage container legislation doubt whether any of them will reach the House floor. According to one commentator, if any legislation is passed it will probably be a version of one of the four bills,⁹ now pending in the House Interstate and Foreign Commerce Committee, which resemble the Senate bill (S.2062) and the Oregon statute.

Each of these bills would ban the introduction into interstate commerce of nonreturnable beverage containers. Metal containers with detachable tab tops would be defined as nonreturnable. Returnable containers are divided into two categories, certified and uncertified, with a required deposit on each of two cents and five cents respectively. Certified containers would be those approved by the Administrator of EPA as reusable and acceptable by more than one beverage manufacturer or bottler in the ordinary course of business. The certification process should encourage the use by bottlers of uniformly designed containers. H.R. 14615, which is identical to the amended version of S.2062, puts extra teeth in the certification process by vesting authority in the Administrator of EPA to regulate the size and shape of certified bottles. [4 ELR 10086] This authority is augmented by the use in H.R. 14615 of permissive language in the sections enabling the Administrator to certify containers. Because the Administrator's duty to certify is therefore discretionary, bottlers and manufacturers should find it more difficult to compel certification through the courts. The change in language could be used as a significant bargaining tool by the Administrator to encourage compliance with design regulations. The inclusion of the provision authorizing the regulation of certified container specifications and the change to discretionary language follows the amendments made to the Oregon statute in 1973. After enactment of the original Oregon Act a trend developed towards use of a completelyuniform beer container, an eleven ounce "stubby"; gaining familiarity with the Act, bottlers and manufacturers, discovering that obtaining certification was possible on a variety of containers, reversed the trend towards standardization. The Oregon legislature felt that stronger measures were needed to achieve the goals of the certification procedure.

One of the House bills pending in the Commerce Committee, H.R. 1109, is substantially different from S.2062. Introduced by Representative Roybal, that bill prohibits the introduction into interstate commerce of nonreturnables with no "reasonable refundable money deposit." The bill does not define a "reasonable deposit," instead delegating all definitions to the Secretary of HEW.

All of the proposed bills in the Commerce Committees provide for penalties of up to a $1000 fine or six months imprisonment, or both, for violation of the ban on nonreturnables.

Unlike two of the bills pending in the House Committee on Ways and Means, one of which would include wine bottles and another which includes distilled spirits bottles, the legislation considered by the Commerce Committees deals only with containers for malt beverages and soft drinks. Although EPA has reported that wine and liquor bottles constitute approximately three percent of roadside container litter versus 71.3 percent for beer and 25.7 percent for soft drink containers,¹⁰ no study has been done on the quantity and visibility of wine and liquor bottles in cities, which would seem great enough to warrant inclusion of these containers in the legislation. The Commerce Committee's bills avoid several problems pointed out by industry spokesmen, notably the Internal Revenue Code's prohibition against reuse of liquor bottles and the importance of distinctive proprietary shapes of wine bottles as a factor in sales volumes.

Like S.2062, three of the similar House bills would implement the total ban on nonreturnables 180 days after enactment. H.R. 14690, authored by Representative Esch, would delay the effective date of the ban for three years as an amortization provision to reduce whatever economic impact the bills would have on manufacturers. The lack of a longer phase-in period in S.2062, inter alia, led Deputy Administrator Quarles of EPA to refuse recommendation of the bill while wholly endorsing the concept of container legislation. Another factor in EPA's reluctance to endorse S.2062 was doubt about the effect of a provision in § 3 defining interstate commerce for the purposes of the Act. Deputy Administrator Quarles remarked before the Senate Committee on Commerce that some could construe the provision as drawing a distinction between intrastate and interstate shipments, which he perceived could destroy the federal program.

Proponents of the federal legislation argue that several reasons underlie the need for national measures: that problems of energy use and conservation are recognized federal issues; that local programs, unlike a federal system, are subject to the disruption caused by importation of noncomplying containers from neighboring jurisdictions; that the need for immediate energy saving measures can only be met through federal legislation; and that federal leadership is needed to establish a national conservation ethic. EPA has estimated that if 90 percent of the bottles produced are refillable, and each bottle is refilled an average of ten times — and many proponents of bottle bills believe that the number of refills per bottle will be higher — the energy saved in beverage container manufacture would be equivalent to 92,000 barrels of oil per day.

Although the industry's comments on the proposed legislation have for the most part been critical, forecasting negative effects upon sales volumes and large scale unemployment of workers in the beverage container industries, testimony by some industry managers has been favorable. As quoted by Thomas Kimball of the National Wildlife Federation, the president of Coca-Cola USA, J. Lucien Smith, stated to the Senate Judiciary Committee that "returnable bottles offer the best value to the consumer, and returnable bottles provide the most ecologically sound method of distributing soft drinks."

Supporters of the proposed bills foresee no legal difficulties with the legislation. Where state statutes have been challenged on constitutional grounds, the courts have found container legislation a valid exercise of state police power. Considering the broad regulatory authority traditionally recognized by the courts to be conferred by the Commerce Clause, federal legislation would seem even less susceptible to challenge.

Lauded by commentators as a rare instance where the present Administration has sided with environmentalists in the face of industry opposition, the proposed container legislation would both save energy and benefit the environment. The bills similar to S.2062 are all modeled after the Oregon statute, which has been considered a success by most observers. Administration and congressional supporters of the legislation, recognizing that a phase-in period is necessary to ameliorate any adverse economic effects on industry, have suggested durations [4 ELR 10087] from three to fifteen years as appropriate. Some period certainly seems reasonable, but it is to be hoped that the Congress will not give in to industry pressure to put off implementation of this desirable legislation until another generation has grown up influenced by the "throwaway ethic" which nonreturnable containers foster.

1. For a discussion of the Oregon "Bottle Bill" and of municipal container ordinances see Comment, Oregon's "Bottle Bill" Survives Challenges, Produces Results, 3 ELR 10112.

2. See EPA, Second Report to Congress, Resource Recovery and Source Reduction (SW-122).

3. H.R. 2172, H.R. 2596, and H.R. 3959. See Tax Treatment of Recycling of Solid Wastes, Report of Hearings before the House Committee on Ways and Means, March 20, 21, 1974.

4. H.R. 2596

5. H.R. 3959

6. H.R. 2172

7. H.R. 2172, and H.R. 3959

8. H.R. 2596

9. H.R. 14615, H.R. 14300, H.R. 9782, H.R. 14690

10. Bingham, T.H., and Mulligan, P.F. [Research Triangle Institute] The Beverage Container Problem: Analysis and Recommendations. U.S.G.P.O., 1972 p. 29-30.