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International Bottled Water Association files federal law suit to block sections of New York's bottled water bill Staff Report

Originally published May 19, 2009; Updated May 23, 2009

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The International Bottled Water Assn. (IBWA), two of its leading members and environmental activist Robert F. Kennedy Jr., owner of a small water bottling company, have filed a federal law suit against the state of New York to block parts of the state's new bottled water law.

Backers of the suit, including Nestle Waters North America, Inc., and Massachusett-based bottler, Polar Corporation, better known as Polar Beverages, argue it unfairly applies to plain bottled water but exempts water with sugar added. Such products include teas and sports drinks. In addition, they said it interferes with interstate commerce and may actually hurt recycling efforts rather than help them.

The suit, filed May 19 in U.S. District Court in Manhattan, also argues that New York didn't give bottlers enough time to comply with the law. It was enacted in April as an expansion of an existing New York "Bottle Bill," and takes effect June 1.

An IBWA news release announcing the law suit said the association "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."

Kennedy, owner of Keeper Springs, a Honesdale, Pennsylvania, bottler, said in his declaration

the new law will "frustrate its own stated pro-environmental purposes, and so does not serve the public interest."

According to statements by Nestle and Kennedy, other states, like California, have enacted recycling laws that are better at encouraging consumers to return bottles.

The New York law, as adopted in 1982, required a 5-cent refundable deposit on single serving soda and beer containers. Bottled water was exempt from the deposit. But the new law includes bottled water, flavored bottled water, vitamin water, and water containing artificial sweeteners, and requires the bottles to be labeled with a selling-price scanner bar code that applies only in New York. The law prohibits bottles with the New York universal product code (UPC) from being sold in other states, according to the IBWA, a provision the law suit argues is illegal because only the federal government can regulate interstate commerce.

The new law, according to the IBWA, requires bottlers by June 1 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.

"This is an enormous task, even under reasonable deadlines," said Polar Beverages CEO Ralph Crowley Jr. in a news release. "But reasonable, this deadline is not."

In addition, the federal court suit challenges the legality of a section of the new law that exempts water with sugar added.

"It (the sugar exemption) just came out of nowhere," said IBWA Vice President for Communications Tom Lauria in a telephone interview. He said New York Gov. David A. Paterson has been a strong supporter of health issues, but the sugar exemption was added to the bill "and we don't know why."

A spokesperson for Paterson said in an email that he wanted teas, juices and sports drinks included in the law but they were given an exemption during negotiations with members of the Legislature.

In a statement posted on its web site, Nestlé Waters North America CEO Kim Jeffery urged New York lawmakers to amend the law to clear up the IBWA concerns, but said with such a short deadline, the law suit is necessary.

“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," said Jeffery in his statement. "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.”

Nestlé brands include Arrowhead, Calistoga, Deer Park, Ice Mountain, Ozarka, Poland Spring, Zephyrhills, Perrier, S. Pellegrino, Acqua Panna and Contrex.

Kennedy's Keeper Springs donates all of its profits to clean water environmental organizations.

"In its current form, the New York Bottle Bill hurts recycling efforts by communities and cities," Kennedy said in a Frequently Asked Questions file posted to the Keeper Springs web site. "It seems to be more a revenue raising effort by the state than a sincere effort to promote and support maximal recycling."

In his affidavit in support of the law suit Kennedy said the new New York law is "contrary both to sound recycling and public health policy in the short and long run."



To download a pdf of the law suit, click here

To download a pdf of Robert F. Kennedy Jr's declaration, click here

Nestle CEO Kim Jeffery's statement pdf

IBWA news release

Polar Beverages news release

Robert F. Kennedy's FAQ about the New York Bottle Bill pdf




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