New Hampshire 2003 bill text

House Bill 1396

The following text was found at http://gencourt.state.nh.us/legislation/2004/HB1396.html

HOUSE BILL 1396

COMMITTEE: Commerce

ANALYSIS

This bill establishes the New Hampshire returnable beverage container law, which requires that beverage containers have a refund value. The commissioner of agriculture, markets, and food is responsible for administering the provisions of law and is granted rulemaking authority under this bill.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-2324

08/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Returnable Beverage Containers. Amend RSA by inserting after chapter 429 the following new chapter:

CHAPTER 429-A

RETURNABLE BEVERAGE CONTAINERS

429-A:1 Definitions. In this chapter:

I. "Beverage" means beer, ale, or other drink produced by fermenting malt, wine coolers, soda or noncarbonated water, and all nonalcoholic carbonated or noncarbonated drinks in liquid form and intended for internal human consumption, except for unflavored rice milk, unflavored soymilk, milk, and dairy-derived products.

II. "Beverage container" means a bottle, can, jar, or other container made of glass, metal, or plastic that has been sealed by a manufacturer and at the time of sale contains more than 8 ounces and less than one liter of a beverage. This term does not include a container composed, in whole or in part, of aluminum and plastic or aluminum and paper in combination as long as the aluminum content represents 10 percent or less of the unfilled container weight, the container materials represent 5 percent or less of the total weight of the container and its contents, and the container is filled with a nonalcoholic beverage.

III. "Commissioner" means the commissioner of agriculture, markets, and food.

IV. "Consumer" means an individual who purchases a beverage in a beverage container for use or consumption.

V. "Dealer" means a person who sells, offers to sell, or engages in the sale of beverages in beverage containers to a consumer, including, but not limited to, an operator of a vending machine containing beverages in beverage containers.

VI. "Department" means the department of agriculture, markets, and food.

VII. "Distributor" means a person who engages in the sale of beverages in beverage containers to a dealer in this state and includes a manufacturer who engages in such sales.

VIII. "Manufacturer" means a person who bottles, cans, or otherwise places beverages in beverage containers for sale to distributors or dealers.

IX. "Nonrefillable" means a beverage container which, after being used by a consumer, is not to be reused as a beverage container by a manufacturer.

X. "Operator of a vending machine" means an owner of a vending machine, the person who refills it, or the owner or lessee of the property upon which it is located.

XI. "Premises" means the property of the dealer or the lessor on which the sale is made.

XII. "Refillable" means a beverage container which, after being used by a consumer, is to be reused as a beverage container at least 5 times by the manufacturer.

XIII. "Rice milk" means any liquid intended for internal human consumption of which the primary protein source is rice protein derived from partially milled brown rice.

XIV. "Unflavored soymilk" means any liquid containing no additional flavoring ingredients and intended for internal human consumption, the primary protein source of which is soy protein derived from whole soybeans, isolated soy protein, soy protein concentrate, soy flour, spray-dried tofu, or spray-dried soymilk.

XV. "Use or consumption" means the exercise of any right or power over a beverage incident to the ownership thereof, other than the sale, storage, or retention for the purpose of sale of a beverage.

XVI. "Wine cooler" means a beverage of less than 8 percent alcohol by volume consisting of wine and:

(a) Plain, sparkling, or carbonated water; and

(b) Any one or more of the following:

(1) Fruit juices;

(2) Fruit adjuncts;

(3) Artificial or natural flavors or flavorings;

(4) Preservatives;

(5) Coloring; or

(6) Any other natural or artificial blending material.

429-A:2 Refund Value. To discourage littering and to encourage container reuse, every beverage container sold or offered for sale to a consumer in this state shall have a deposit and refund value. The deposit and refund value shall be determined as follows:

I. For refillable beverage containers, the manufacturer shall determine the deposit and refund value according to the type, kind, and size of the beverage container. The deposit and refund value shall not be less than $.05.

II. For nonrefillable beverage containers sold through geographically exclusive distributorships, the distributor shall determine and initiate the deposit and refund value according to the type, kind, and size of the beverage container. The deposit and refund value shall not be less than $.05.

III. For nonrefillable beverage containers not sold through geographically exclusive distributorships, the deposit and refund value shall not be less than $.05.

429-A:3 Dealer as Distributor. Whenever a dealer or group of dealers receives a shipment or consignment of, or in any other manner acquires, beverage containers outside the state for sale to consumers in the state, such dealer or dealers shall comply with this chapter as if they were distributors, as well as dealers.

429-A:4 Labels; Stamps; Brand Names.

I. Except as provided in paragraphs II and IV, the refund value and the words "New Hampshire" or the abbreviation "NH" shall be clearly indicated on every refundable beverage container sold or offered for sale by a dealer in this state, by embossing, stamping, labeling, or other method of secure attachment to the beverage container. The refund value shall not be indicated on the bottom of the container. Metal beverage containers shall be embossed or stamped on the top of the container.

II. With respect to nonrefillable beverage containers the deposits for which are established under RSA 429-A:2, III, the refund value and the words "New Hampshire" or the abbreviation "NH" shall be clearly indicated on every refundable beverage container sold or offered for sale by a dealer in this state, by permanently embossing or permanently stamping the beverage containers, except in instances when the initiator of the deposit has specific permission from the department to use stickers or similar devices. The refund value may not be indicated on the bottom of the container. Metal beverage containers shall be permanently embossed or permanently stamped on the tops of the containers.

III. Notwithstanding paragraph I and with respect to nonrefillable beverage containers, for the deposits that are established under to RSA 429-A:2, II, the refund value and the words "New Hampshire" or the abbreviation "NH" shall be clearly indicated on refundable beverage containers sold or offered for sale by a dealer in this state by use of stickers or similar devices if those containers are not otherwise marked in accordance with paragraph I. A redemption center shall accept containers identified by stickers in accordance with this paragraph or by embossing or stamping in accordance with paragraph I.

IV. Refillable glass beverage containers of carbonated beverages, for which the deposit is established under RSA 429-A:2, I, that have a refund value of not less than $.05 and a brand name permanently marked on the container are not required to comply with paragraph I. The exception provided by this paragraph shall not apply to glass beverage containers that contain malt liquor as that term is used in title XIII.

429-A:5 Application.

I. Except as provided in this section, a dealer shall not refuse to accept from any consumer or other person not a dealer any empty, unbroken, and reasonably clean refundable beverage container of the kind, size, and brand sold by the dealer, or refuse to pay in cash the refund value of the returned beverage container as established by RSA 429-A:2. This paragraph shall apply to refundable cans and plastic bottles that are dented but intact. This section shall not require an operator of a vending machine to maintain a person to accept returned beverage containers on the premises where the vending machine is located.

II. A dealer may refuse to accept from a consumer or other person and to pay the refund value on any beverage container, if the place of business of the dealer and the kind, size, and brand of beverage container are included in an order of the department approving a redemption center under RSA 429-A:6.

III. A dealer may limit the total number of beverage containers to be accepted from any one consumer or other person in any one business day to 240 containers, or any other number greater than 240.

IV. A dealer may refuse to accept beverage containers during no more than 3 hours in any one business day. The dealer shall conspicuously post the hours during which containers will not be accepted pursuant to this paragraph.

V. A distributor shall not refuse to accept from any dealer or local redemption center any empty, unbroken, and reasonably clean refundable beverage container of the kind, size, and brand sold by the distributor or refuse to pay to the dealer or local redemption center the refund value of a beverage container as established by RSA 429-A:2.

VI. In addition to the payment of the refund value, the initiator of the deposit under RSA 429-A:2 shall reimburse the dealer or local redemption center for the cost of handling beverage containers subject to RSA 429-A:2, in an amount that equals at least $.03 per returned container.

VII.(a) A distributor that initiates the deposit under RSA 429-A:2, II has the obligation to pick up any empty, unbroken, and reasonably clean refundable beverage containers of the particular kind, size, and brand sold by the distributor from dealers to whom that distributor has sold those beverages and from licensed redemption centers designated to serve those dealers pursuant to an order entered under RSA 429-A:6. A distributor that, within this state, sells beverages under a particular label exclusively to one dealer, which dealer offers those labeled beverages for sale at retail exclusively at the dealer's establishment, shall pick up any empty, unbroken, and reasonably clean refundable beverage containers of the kind, size, and brand sold by the distributor to the dealer only from those licensed redemption centers that serve the various establishments of the dealer, under an order entered under RSA 429-A:6. A dealer that manufactures its own beverages for exclusive sale by that dealer at retail has the obligation of a distributor under this section.

(b) The initiator of the deposit under RSA 429-A:2, III has the obligation to pick up any empty, unbroken, and reasonably clean refundable beverage containers of the particular kind, size, and brand sold by the initiator from dealers to whom a distributor has sold those beverages and from licensed redemption centers designated to serve those dealers pursuant to an order entered under RSA 429-A:6. The obligation may be fulfilled by the initiator directly or indirectly through a contracted agent.

VIII. The obligations to accept or take empty beverage containers and to pay the refund value and handling fees for the containers described in this section apply only to containers originally sold in this state as filled beverage containers. A person who tenders to a dealer, distributor, redemption center, or bottler more than 48 empty beverage containers that the person knows or has reason to know were not originally sold in this state as filled beverage containers is subject to the enforcement action and civil penalties set forth in this paragraph. At each location where customers tender containers for redemption, dealers and redemption centers shall conspicuously display a sign in letters that are at least one inch in height with the following information: "WARNING: Persons tendering containers for redemption that were not originally purchased in this state may be subject to a fine of the greater of $100 per container or $25,000 for each tender. (RSA 429-A:5)." A person who violates the provisions of this paragraph is subject to civil penalty of the greater of $100 for each container or $25,000 for each tender of containers.

429-A:6 Redemption Centers.

I. Local redemption centers may be established and operated by any person or municipality, subject to the approval of the commissioner, to serve local dealers and consumers, at which consumers may return empty beverage containers as provided under RSA 429-A:5.

II. Application for approval of a local redemption center shall be filed with the department. The application shall state the name and address of the person responsible for the establishment and operation of the center, the kinds, sizes, and brand names of beverage containers which will be accepted and the names and addresses of dealers to be served and their distances from the local redemption center.

III. The commissioner shall approve a local redemption center if the commissioner finds that the center will provide a convenient service for the return of empty beverage containers. The order approving a local redemption center shall state the dealers to be served and the kinds, sizes, and brand names of empty beverage containers which the center shall accept.

IV. A local redemption center shall not refuse to accept from any consumer or other person not a dealer any empty, unbroken, and reasonably clean refundable beverage container of the kind, size, and brand sold by a dealer served by the center or refuse to pay in cash the refund value of the returned beverage container as established by RSA 429-A:2.

V. A list of the dealers served and the kinds, sizes, and brand names of empty beverage containers accepted shall be prominently displayed at each local redemption center.

VI. The commissioner may, after notice and hearing, withdraw approval of a local redemption center if there has not been compliance with the approval order or if the local redemption center no longer provides a convenient service to the public.

429-A:7 Penalties. Unless otherwise provided in this chapter, a violation of the provisions of this chapter by any person shall subject the person to a civil forfeiture to the state of not more than $100 for each violation, and for each day of a continuing violation; provided, however, that a forfeiture of $1,000 may be adjudged against a person who knowingly violates a provision of RSA 429-A:5, VII.

429-A:8 Exception for Beverage Containers Used on International Flights. This chapter shall not apply to any beverage container sold to an airline and containing a beverage intended for consumption on an aircraft flight in interstate or foreign commerce.

429-A:9 Rulemaking. The commissioner may adopt rules pursuant to RSA 541-A relative to:

I. The manner in which distributors shall fulfill the obligations imposed by RSA 429-A:5, VII(a).

II. A minimum number or value of containers below which a distributor is not required to respond to a request to pick up empty containers.

III. Allocation of the burdens associated with the handling, storage, and transportation of empty containers to prevent unreasonable financial or other hardship.

IV. Procedures for designating certain transportation activities and storage or production facilities or portions of facilities as exempt from RSA 429-A:10, V.

429-A:10 Unlawful Possession of Beverage Containers.

I. No person shall possess more than 48 full beverage containers that are not labeled under RSA 429-A:4. This section shall not apply to solid waste facilities permitted under RSA 149-M.

II. Any person violating this section within one year of its effective date shall be issued a warning that a violation of this section has occurred and shall not be subject to the penalties in paragraph III.

III. A violation of this section shall subject the person to a civil forfeiture to the state of $20 per container in excess of 48 beverage containers.

IV. The New Hampshire state police shall enforce this section and prosecute any person found in violation.

V. The department may exempt from this section, under procedures adopted pursuant to RSA 429-A:9, IV, certain transportation activities and storage or production facilities or portions of facilities based on a showing by the person owning or operating the facility or undertaking the activity that:

(a) The beverage containers stored or transported are intended solely for retail sale outside of the state; or

(b) The person is licensed under RSA 178 and the beverage containers are being transported to and stored in a facility prior to labeling and subsequent retail sale within the state. The department may require reporting of the numbers of beverage containers imported into and exported from the state under the terms of this section.

2 Effective Date. This act shall take effect 60 days after its passage