Update April 8: This advisory has been updated to include the latest information on suspending bottle deposit redemption enforcement.
Eight of the ten U.S. states with beverage container redemption programs have temporarily suspended enforcement actions against retailers for failing to accept empty beverage containers for redemption under so-called "bottle bill" laws. Connecticut, Iowa, Maine, Massachusetts, Michigan, New York, Oregon, and Vermont recently announced such suspensions.
Please note that all enforcement suspensions are subject to extensions, and the states did not suspend their entire empty beverage container redemption programs, but only the enforcement aspect of regulations requiring retailer participation. For those in affected states, it is up to the retailers whether they want to continue participating in a redemption program during the COVID-19 pandemic.
The enforcement suspension in Oregon will stay in effect through April 30, 2020. If retailers do not take back empty beverage containers during the temporary period, the Oregon Liquor Control Commission (OLCC) will not issue them a notice of violation.
This temporary period of non-enforcement began March 15, 2020 at a time when grocers and supermarkets were overwhelmed with an unprecedented volume of customers attempting to purchase provisions. The temporary suspension was set to expire on March 31, 2020. However, the OLCC extended it amid continued concerns related to COVID-19 and other challenges faced by retailers, such as lack of cleaning supplies and social distancing directives.
BottleDrop redemption centers, operated by the Oregon Beverage Recycling Cooperative (OBRC), will remain open, however.
The enforcement suspension in New York will stay in effect during the ongoing COVID-19 response efforts, with no specific deadline in sight. While continuing the redemption of containers is considered an essential service in New York, the state's Department of Environmental Conservation will not actively enforce violations at facilities unable to perform redemption operations due to resource restrictions during the ongoing COVID-19 response efforts.
The enforcement suspension in Michigan will stay in effect through April 13, 2020. Governor Gretchen Whitmer's Executive Order 2020-21 sets forth a temporary requirement to suspend activities that are not necessary to sustain or protect life, and bottle return service is not considered an essential service in Michigan. Although bottle return services are often performed by grocery and convenience stores, Michigan does not consider them to be critical infrastructure.
The enforcement suspension in Vermont will stay in effect through April 30, 2020. The Vermont Department of Environmental Conservation (DEC) will temporarily stop pursuing enforcement action against retailers or redemption centers which fail to redeem beverage containers subject to Vermont's bottle bill law.
Decisions about whether to close or stop redeeming during this time are solely at the discretion of the retailer or redemption center.
The enforcement suspension in Massachusetts will stay in effect until further notice, or until the state of emergency ceases. The Massachusetts Department of Environmental Protection and the Massachusetts Attorney General's Office will assess the situation on an ongoing basis and notify grocers, supermarkets, and other retailers when redemption services must resume and the temporary enforcement suspension ends.
The enforcement suspension in Maine will stay in effect through April 30, 2020, at which time the DEP will reevaluate.
The enforcement suspension in Connecticut will stay in effect through April 30, 2020. At the present time, however, most independent bottle bill redemption centers in Connecticut are continuing to redeem deposit containers, and some retail stores may choose to do so as well.
The enforcement suspension in Iowa will stay in effect through April 30, 2020. Governor Kimberly Reynolds suspended the regulatory provisions of Iowa Code § 455C.3 (1) and Iowa Admin. Code chapter 567-107, to the extent that those provisions require a retailer to accept an empty beverage container on which an Iowa deposit was made.
California and Hawaii
California and Hawaii, the other two states with bottle bills, have not announced enforcement changes. The Hawaii Department of Health, however, did announce that hours of operation for redemption centers could change due to the COVID-19 conditions.
Davis Wright Tremaine's beverage practice group advises retailers and other vendors on all areas of bottle bill law, and is here to help you in any way we can during this time.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.