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Part 367: Returnable Beverage Containers

(Statutory authority: Environmental Conservation Law, §27-1001, 27-1013, 27-1009 (2), 3-0301.2(m))

[Effective, July 1, 1983. This web page was last updated on 6/4/98.]

[Amendments to the Returnable Container Law, which affect the 6NYCRR Part 367 Returnable Beverage Containers Regulations, have been enacted since these regulations were last revised.]

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For more information about this posting, contact: The Division of Solid & Hazardous Materials

Contents:

Sec.

§367.1 Purpose and applicability

The purpose of this Part is to implement Title 10 (Litter and Solid Waste Control) of Article 27 of the Environmental Conservation Law, which is also known as the New York State Returnable Container Act. This regulation clarifies the provisions of the law and facilitates its orderly and effective implementation. In addition, this regulation is intended to provide a mechanism for economically and environmentally sound collection of empty beverage containers, to foster systems of redemption which facilitate recycling and reuse of empty beverage containers, and to minimize costs without inconveniencing consumers. This regulation applies to all transactions involving the sale, use or consumption of beverages in beverage containers in New York State.

§367.2 Definitions

(a) Apply means to apply or attach or to cause to be applied or attached.

(b) Beverage means carbonated soft drinks, mineral water, soda water, beer and other malt beverages.

(c) Beverage container means the individual, separate, sealed glass, metal or plastic bottle, can or jar used for containing, at the time of sale, one gallon (3.8 liters) or less of a beverage intended for use or consumption in this State.

(d) Beverage manufacturer means a person who bottles, cans or otherwise packages beverages in beverage containers, or who imports filled beverage containers into the United States.

(e) Commissioner means the Commissioner of Environmental Conservation.

(f )Consumer means a person who buys a beverage for use or consumption.

(g) Dealer means a person who engages in the sale of beverages in beverage containers to a consumer for off-premises consumption in this State.

(h) Deposit means the refund value established pursuant to section 367.3 of this Part.

(i) Distributor means a person who is a beverage manufacturer or who engages in the sale of beverages in beverage containers to a dealer. A person who purchases directly from a beverage manufacturer a beverage in a beverage container bearing a brand name or trademark owned by that person is considered to be a distributor of such beverage.

(j) Environmental Conservation Law means chapter 43-B of the Consolidated Laws of New York State.

(k) Filled means bottled, canned or otherwise packaged with the original beverage contents.

(l) Initiate a deposit means to be the first person to charge a deposit on a beverage container.

(m) Malt beverage means any beverage obtained by the alcoholic fermentation or infusion or decoction of barley, malt, hops or other wholesome grain or cereal and water, including but not limited to ale, stout or malt liquor.

(n) Mineral water means water which is naturally or artificially impregnated with mineral salts or gases such as carbon dioxide or which is sold as a mineral water.

(o) Person means individual, firm, corporation or other legal entity.

(p) Place of business means the location at which a dealer sells beverages in beverage containers to consumers.

(q) Redeemer means a person, other than a dealer or distributor, who demands the refund value in exchange for the empty beverage container.

(r) Redemption center means any person offering to pay the refund value of an empty beverage container to a redeemer, or any person who contracts with one or more dealers or distributors to collect, sort and obtain the refund value and handling fee of empty beverage containers for or on behalf of such dealer(s) or distributor(s).

(s) Refillable beverage container means any beverage container which is so constructed and designed that it is structurally capable of being refilled and resold by a beverage manufacturer, and which the beverage manufacturer requires to be returned for the purpose of refilling and resale.

(t) Refund value means the amount of the deposit established pursuant to section 367.3 of this Part.

(u) Sale means the act of selling or offering to sell, or distributing for use or consumption.

(v) Soda water means water charged with a gas, such as carbon dioxide, to cause effervescence.

(w) Type of beverage container means the design, shape, size, color, composition and brand of beverage container.

(x) Use or consumption means the exercise of any right or power incident to the ownership of a beverage other than to sell or to keep or retain a beverage for the purpose of selling such beverage.

§367.3 Initiation and application of deposits

(a) Every beverage container sold in this State must have a refund value of not less than five cents. Each such beverage container must have the refund value clearly indicated on it as provided in section 367.8.

(b) The refund value is the amount of the deposit required. This amount must be set by the beverage manufacturer. The beverage manufacturer may develop a schedule of refund values varying according to size or type of beverage container involved. The beverage manufacturer, or such other person specified in section 367.8(b), must apply the indication of refund value required by section 367.8 to the beverage container.

(c) Once an indication of refund value has been applied to a beverage container, the deposit on that beverage container may not be changed.

(d) For a beverage manufactured in the United States, the deposit on each filled beverage container must be initiated by the first distributor of such beverage who is not a beverage manufacturer; except that:

(1) the beverage manufacturer must initiate the deposit on any such beverage which is sold to a person who is not a distributor; and

(2) the beverage manufacturer may initiate the deposit on any such beverage which is sold in a refillable beverage container. For a beverage manufactured outside the United States, the deposit on each filled beverage container must be initiated by the first distributor of such beverage located in the United States; except that the beverage manufacturer may initiate the deposit on any such beverages sold in refillable beverage containers. No other person may initiate a deposit on a beverage container sold in New York State.

(e) Except as provided in section 367.4(b) , once a deposit has been initiated on a filled beverage container, the deposit must be charged on each sale of such filled beverage container.

§367.4 Sales of beverages in beverage containers for on-premises consumption

(a) A person who sells beverages in beverage containers for on-premises consumption only is not a dealer for purposes of this Part. However, a person who engages in any sales of beverages in beverage containers for off-premises consumption becomes a dealer for purposes of this Part. Such dealer must charge a deposit on all such sales for off-premises consumption.

(b) A deposit must be charged on all sales of beverages in beverage containers to a person who sells beverages in beverage containers only for on-premises consumption. However, a consumer who purchases such a beverage for on-premises consumption need not be charged a deposit on the beverage container provided the consumer does not remove the container from such premises.

(c) All beverage containers containing beverages sold for on-premises consumption must comply with section 367.3 and must bear the indication of refund value required by section 367.8, regardless of whether or not the beverage is served to the consumer in the original container.

§367.5 Redemption of empty beverage containers

(a) Except as provided in section 367.7:

(1) A dealer must:

(i) accept, at his place of business and from any redeemer, any empty beverage containers of the type sold by the dealer regardless of whether or not the filled beverage container was originally sold by the dealer; and

(ii) pay to the redeemer the refund value of each such beverage container.

(2) For purposes of this paragraph, the term distributor excludes a beverage manufacturer who does not engage in the sale of filled beverage containers to a dealer. A distributor must:

(i) accept, from any dealer or redemption center, any empty beverage containers of the type sold by the distributor regardless of whether or not the filled beverage container was originally sold by the distributor; and

(ii) pay the dealer or redemption center the refund value of each such beverage container.

(3) A distributor who sells beverages in beverage containers to a person who sells such beverages to a consumer for on-premises consumption must:

(i) accept from that person all such empty beverage containers; and

(ii) pay that person the refund value of each such empty beverage container.

(4) Once the refund value of an empty beverage container has been paid by a distributor who initiates deposits on that type of beverage container, no person may knowingly accept that empty beverage container from, or give or sell it to, any person for the purpose of obtaining the refund value from any person.

(5) A distributor who initiates a deposit on a type of beverage container must:

(i) accept empty beverage containers of that type from a distributor who does not initiate deposits on beverage containers of that type;

(ii) pay to such distributor the refund value of each such empty beverage container; and

(iii) pay to such distributor the handling fee on each such beverage container, as specified in section 367.6 of this Part.

(b) A distributor may require a dealer or redemption center to sort containers to be redeemed according to brand and, within brand, according to amount of deposit and, within amount of deposit, according to whether the container is intended to be refilled. Distributors may make agreements with dealers or redemption centers specifying alternate sorting arrangements.

(c) Acceptance of empty beverage containers by a distributor from a dealer or a redemption center as specified in paragraph (a)(2) of this section is subject to the following additional requirements:

(1) The distributor must pick up such empty beverage containers, at the distributor's expense, from a dealer at least as often as such distributor delivers filled beverage containers to such dealer.

(2) The distributor must pick up such empty beverage containers, at the distributor's expense, from any redemption center which is located in the distributor's primary marketing area, which is not operated by or for the benefit of a dealer or distributor, and which accepts empty beverage containers only from redeemers.

(3) Pick up of empty beverage containers from a redemption center must be on a frequency schedule agreed to between the distributor and the redemption center. However, in no event may the frequency be less than once every two weeks, unless the redemption center agrees that the volume of containers to be accepted from the redemption center does not warrant bi weekly collection.

(4) The distributor must promptly pay to each dealer or redemption center all applicable refunds and handling fees specified in this Part. The distributor may make such payments to each dealer or redemption center according to the same terms imposed on such dealer or redemption center for payment to such distributor for filled beverage containers. If filled beverage containers are not purchased by the dealer or redemption center from the distributor, such payments must be made not later than 10 business days after acceptance of the empty beverage containers. If payment is made by mail, it is deemed to be made on the postmark date.

(d) A dealer may not limit the number of empty beverage containers to be accepted for redemption at the dealer's place of business to less than 240 containers per redeemer per day. A dealer who chooses to so limit the number of empty beverage containers accepted for redemption must post a notice of such limit in a prominent place at the point at the dealer's place of business where empty beverage containers are accepted for redemption. Such notice must also state that any redeemer may make 48-hour advance arrangements to redeem an unlimited number of empty beverage containers.

(e) A dealer may not limit the hours for acceptance of empty beverage containers for redemption to less than the hours the dealer is open for business, except that on any day that the dealer is open for business less than 24 hours, the dealer may restrict or refuse redemptions during the first and the last half hour of the hours the dealer is open for business.

(f) A dealer or distributor who discontinues the sale of a beverage in a beverage container, must redeem the deposit on that type of beverage container for a period of at least 60 days following the date of discontinuance of sale. If a dealer or distributor intends to limit the period for redeeming any such container, a conspicuous notice must be posted at the point of sale announcing the discontinuance of sale, identifying the type of beverage container being discontinued, and identifying the period of time during which redemptions will continue to be made.

(g) The commissioner may, from time to time, prepare guidelines for contracts or agreements between distributors and dealers or redemption centers. Copies of any such guidelines may be obtained from any regional office of the Department of Environmental Conservation.

§367.6 Handling fees

(a) A distributor must pay to each dealer or redemption center a handling fee of not less than 20 percent of the refund value of each empty beverage container accepted from such dealer or redemption center. This handling fee must be paid in addition to the refund value of each such empty beverage container.

(b) A distributor who does not initiate deposits on a type of beverage container is considered a dealer for that type of beverage container for purposes of receiving a handling fee.

§367.7 Refusal of acceptance of a beverage container

(a) A dealer or redemption center may refuse to accept any broken bottle, corroded or dismembered can, or any beverage container which:

(1) contains a free-flowing liquid;

(2) does not properly indicate a refund value; or

(3) contains a significant amount of foreign material, as defined in this section. However, a distributor must accept from any dealer or redemption center any broken bottle, corroded or dismembered can, or any beverage container which contains a significant amount of foreign material if the beverage container properly indicates a refund value and if the dealer or redemption center has accepted the beverage container and paid the refund value. A beverage container properly indicates a refund value if it is labeled as required in section 367.8 of this Part.

(b) A refillable bottle is broken if it is not able to hold liquid or to be resealed, is not in its original shape or is cracked. A nonrefillable bottle is broken if its bottom is broken out or if its neck is broken off.

(c) A can is corroded if chemical action on the can has caused the indication of refund value required by section 367.8 of this Part to become illegible or missing.

(d) A can is dismembered if its body is not in one piece, if it is crushed flat or if it is unable to stand on its own base. A can which is otherwise dented or partially crushed is not a dismembered can.

(e) A significant amount of foreign material is any material such as paper, sticks or cigarette butts which are foreign to the original contents of the container. Small amounts of dust, dirt or moisture do not constitute a significant amount of foreign material.

§367.8 Beverage container requirements

(a) Except as provided in subdivision (e) of this section, every beverage container sold in this State must clearly indicate the refund value of the beverage container and the words "New York" or the letters "NY." The names, or letters representing the names, of other states with comparable deposit legislation may also be included in the indication of refund value.

(b) The following requirements apply to beverage containers which are not subject to subdivision (e) of this section:

(1) General requirements. The indication of refund value must be permanently marked or embossed on the beverage container or printed as part of the product label. The product label may be the front or the back body label or the neck label. The indication of refund value must be applied by the beverage manufacturer at the beverage manufacturer's place of business.

(2) Alternative methods for labelling private label beverages. For private label beverages the indication of refund value may be embossed or printed on a separate label securely or permanently affixed to the beverage container. In addition, such separate label may be applied to the beverage container by the beverage manufacturer or the brand owner for whose exclusive account private label beverages are bottled, canned or otherwise packaged. For purposes of this section, private label beverages means beverages purchased from a beverage manufacturer in beverage containers bearing a brand name or trademark for sale at retail directly by the owner or licensee of such brand name or trademark; or through retail dealers affiliated with such owner or licensee by a cooperative or franchise agreement.

(3) Alternative methods for labelling imported beverages. For beverages imported into the United States, the indication of refund value may be embossed or printed on a separate label securely affixed to the beverage container. Such separate label may be applied to the beverage container by the duly authorized agent of the beverage manufacturer.

(c) No person may sell in this State a beverage in a beverage container if the indication of refund value is applied by hand, or by means of rubber stamp or similar marking device; or if the indication of refund value is not complete, legible, indelible and easily visible; or if the indication of refund value is not printed in lettering of at least one-eighth inch type size.

(d) No person may sell in this State:

(1) a beverage container which has the refund value indicated only on the bottom of the container;

(2) a metal beverage container which does not have the refund value indicated on top of the container; or

(3) a beverage container which has the refund value indication on any part of the container, including crown caps, screw caps or foil covers, which is removed upon opening.

(e) Subdivision (a) of this section does not apply to any type of refillable glass beverage container which has a brand name permanently marked on it and which had the equivalent of a refund value of at least five cents prior to the effective date of this Part. These glass beverage containers are also subject to the following additional requirements:

(1) Any beverage manufacturer or importer who wishes to use that type of beverage container in this State must notify the commissioner, in writing prior to the effective date of this Part, of the manufacturer, brand, size, shape, color and refund value of each such type of beverage container, and must furnish the commissioner with a photograph, drawing or artist's rendering which depicts each such type of beverage container.

(2) The refund value required by section 367.3 of this Part must be the same for all beverage containers of each separate type of glass beverage container subject to this subdivision.

(3) The refund value required by section 367.3 of this Part may be increased only if it is increased by the same amount for all beverage containers within each separate type of beverage container subject to this subdivision.

(4) The refund value of any such type beverage container may not be reduced.

(5) The dealer must clearly post the refund value of each such type of beverage container at the point of sale. Such refund value must be clearly specified in written business correspondence between the distributor and the dealer.

(f) No distributor or dealer may sell in this State any metal beverage container so designed and constructed that a part of the container is detachable in opening the container.

(g) No distributor or dealer may sell for use or consumption in this State beverages in beverage containers which are packaged by means of plastic loop retainers.

§367.9 Redemption centers

Any person may establish a redemption center and determine the type of empty beverage container to be accepted. Any person who establishes a redemption center pursuant to this Part must notify the commissioner in writing as soon as practicable of the following information and any changes thereto:

(a) name and address of owner(s);

(b) name of operator and address of place of business of the redemption center;

(c) name and address of any dealer(s) and/or distributor(s) served or under contract; and

(d) general geographic area served.

§367.10 Vending Machines

(a) For the purposes of this Part, the dealer for any vending machine containing beverages in beverage containers is the person who fills or refills the vending machine.

(b) The dealer for any such vending machine must post a conspicuous notice on the vending machine which states the dealer's name, business address and the normal business hours during which the dealer will redeem empty beverage containers.

§367.11 Recordkeeping requirements

Each distributor who initiates a deposit on a type of beverage container sold in this State must maintain a record of all deposits initiated, all deposits redeemed, all handling fees paid out and all unclaimed deposits retained. Each such distributor must maintain this information according to generally accepted accounting principles and must report this information to the commissioner on such reasonable frequency as the commissioner deems necessary.

§367.12 General prohibition

All contracts or agreements entered into between or among persons subject to this Part must be consistent with this Part and with title 10 of article 27 of the Environmental Conservation Law. No such contract or agreement may be designed to hinder or frustrate the purpose or intent of this Part.

§367.13 Exemptions

This Part does not apply to:

(a) beverage containers which are manufactured, bottled, canned, filled or packaged in this State, and which are sold outside of this State; or

(b) beverages in beverage containers which are sold or distributed to consumers aboard aircraft.

§367.14 Local beverage container laws

The provisions of this Part supersede any local beverage container control laws which may be in effect on the effective date of this Part. No such local laws may be enacted, implemented or enforced after the effective date of this Part.

§367.15 Violations

A violation of this Part is considered to be a public nuisance. In addition, any person who violates any provision of this Part is liable for a civil penalty of not more than $500 per violation. Each day that a violation continues or exists is considered a separate violation. Any civil penalty may only be assessed following a hearing or opportunity to be heard pursuant to Part 622 of this Title.

§367.16 Severability

If any provision of this Part, or its application to any person or circumstance is held to be invalid, the remainder of this Part, and the application of that provision to other persons or circumstances, will not be affected.

§367.17 Effective date

The provisions of this Part are effective beginning on July 1, 1983.

Note: The following amendments to the Returnable Container Law, which affect the 6NYCRR Part 367 Returnable Beverage Containers Regulations, have been enacted since those regulations were last revised.

1. The definition of "beverage" referred to in Section 367.2(b) has been amended to include "a wine product as defined in subdivision thirty-six a of section three of the alcoholic beverage control law." These wine products are commonly known as wine coolers containing no more than six percent alcohol. (Chapter 778, Laws of 1988)

2. The handling fee referred to in Section 367.6 is now "...1.5 cents for each beverage container..." (Ch149, L1983)

3. The beverage container requirements in Section 367.8(f) have been revised to prohibit the sale of any metal beverage container with any part that is detachable upon opening unless the part will decompose by photodegradation or biodegradation. (Ch834, L1984)

4. The exemptions described in Section 367.13 have been expanded to exclude "ships" which are defined as "any ocean going vessel used to carry passengers or freight in interstate or foreign commerce."
(Ch149, L1983)

5. The violations described in Section 367.15 have been expanded to make it "unlawful for a distributor, acting alone or aided by another, to return empty beverage containers to a dealer or redemption center for their refund value if the distributor had previously accepted such beverage containers from any dealer or operator of a redemption center. A violation of this subdivision shall be a misdemeanor punishable by a fine of not less than five hundred dollars nor more than one thousand dollars and an amount equal to two times the amount of money received as a result of such violation." (Ch149, L1983)

6. Effective December 1, 1998, the handling fee referred to in No. 2 above is now "...2 cents for each beverage container..." (Chapter 389, Laws of 1997).