BILL ANALYSIS Ó
AB 2251
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 2251
AUTHOR: Yamada
AMENDED: April 22, 2014
FISCAL: Yes HEARING DATE: June 4, 2014
URGENCY: No CONSULTANT: Rebecca
Newhouse
SUBJECT : WEIGHTS AND MEASURES: BEVERAGE CONTAINERS:
REDEMPTION VALUE
SUMMARY :
Existing law :
1) Under the California Beverage Container Recycling and Litter
Reduction Act (Act) (Public Resources Code §14500 et seq.):
a) Requires specified beverage containers sold in this
state to have a California redemption value (CRV) of 5
cents for containers that hold fewer than 24 ounces and 10
cents for containers that hold 24 ounces or more.
b) Requires beverage manufacturers to include the correct
CRV value on the label of all beverage containers sold in
the state.
2) Requires the California Department of Food and Agriculture
(CDFA) to investigate conditions in the various counties and
cities in respect to weights and measures, and to the sale of
goods, wares and merchandise, commodities and foodstuffs in
containers (Business and Professions Code (BPC) §12101).
3) Prohibits a person, at the time of sale of a commodity, to
charge an amount greater than the advertised or posted price
and requires CDFA and each county sealer to enforce this
requirement (BPC §§12024.2 and 12103.5).
4) Provides that a violation of the commodity pricing
requirements above is an infraction punishable by a fine of
AB 2251Page
2
not more than one hundred dollars when the overcharge is one
dollar or less (BPC §12024.2).
This bill provides investigative and enforcement authority to
CDFA and county sealers to enforce the requirement that dealers
are prohibited from charging more for a redemption payment than
the actual CRV.
COMMENTS :
1) Purpose of Bill . According to the author, "AB 2251 would
give county agricultural commissioners and sealers of weights
and measures the authority to investigate and enforce
penalties against retailers who improperly charge the
California Redemption Value (CRV). The program is
administered by the California Department of Resources
Recycling and Recovery (CalRecycle) and the department is the
only agency authorized to investigate complaints of
improperly charged CRV. Unfortunately, CalRecycle currently
lacks any enforcement capability specific to CRV overcharges
which has resulted in uninvestigated consumer complaints. As
one of the major responsibilities vested to agricultural
commissioners and sealers is to investigate instances where
prices on services or commodities are incorrectly or
illegally charged, this bill would allow them to use their
existing structures and expertise to assist CalRecycle by
investigating CRV specific complaints."
2) Bottle Bill Background . The Act is designed to provide
consumers with a financial incentive for recycling and to
make recycling convenient to consumers. The centerpiece of
the Act is the California Redemption Value (CRV). Consumers
pay a deposit, the CRV, on each beverage container they
purchase. Retailers collect the CRV from consumers when they
buy beverages. The dealer retains a small percentage of the
deposit for administration and remits the remainder to the
distributor, who also retains a small portion for
administration before remitting the balance to CalRecycle.
When consumers return their empty beverage containers to a
recycler (or donate them to a curbside or other program), the
deposit is paid back as a refund.
3) Weights and Measures . Enforcement of California weights and
AB 2251Page
3
measures laws and regulations is the responsibility of the
Division of Measurement Standards (DMS) within the CDFA.
The Division's activities are designed to:
Ensure the accuracy of commercial weighing and
measuring devices.
Verify the quantity of both bulk and packaged
commodities.
Enforce the quality, advertising and labeling
standards for most petroleum products.
The Division works closely with county sealers of weights and
measures who, under the supervision and direction of the
Secretary of Food and Agriculture, carry out the vast
majority of weights and measures enforcement activities at
the local level. Ensuring fair competition for industry and
accurate value comparison for consumers are the primary
functions of the county and state programs.
1) CDFA memo . The Business and Professions Code (BPC) Section
12024.2 asserts that charging a higher price for a commodity
than advertised, displayed, marked, posted or quoted is
unlawful. The chapter that contains that particular section
is the purview of CDFA, and specifically, the Division within
CDFA. The Division works closely with the county sealers to
investigate complaints from consumers and enforce violations
across the state.
According to a CDFA memo in 2010, CalRecycle pointed to this
section on a 2007 guidance document stating, "beverage
retailers overcharging CRV or charging for non-CRV containers
may be liable under BPC section 12024.2."
In the same memo, CDFA explains that according to an analysis
by their legal department, the BPC section in question only
provides for enforcement of the overcharge of a commodity of
a posted price, and because CRV is not a commodity, but
rather a regulatory fee, it falls outside the enforcement
authority provided in BPC Section 12042.2.
This bill gives enforcement authority to CDFA to investigate
and enforce improper CRV charges by dealers.
AB 2251Page
4
2) How many complaints and what is currently done ? According to
information provided from CalRecycle, out of over 31,000
beverage dealers in California, CalRecycle received 80
consumer complaints (averaging 6.5 per month) against
beverage dealers in 2012. The type of complaints received on
mom/pop operations and large retail stores include CRV
charges on non-CRV products, overcharging on CRV products,
and non-compliance of in-store redemption.
CalRecycle also states that the Act does not provide
CalRecycle with authority to issue civil penalties to remedy
the improper charging for CRV. Currently CalRecycle performs
limited follow-up by validating the overcharge, educating the
store management on the proper CRV and seeking their
cooperation in making the necessary corrections. According to
CalRecycle, most entities comply after these actions are
taken.
3) The issue . As explained above, county sealers are responsible
for accurate weight and measure of commercial goods, as well
as accurate and clear pricing of goods and commodities. In
addition to their regular testing of commercial weighing and
measuring devices, the sealers also respond to consumer
complaints on perceived overcharges.
In addition to complaints from consumers on prices of
services and commodities, the sealers also receive complaints
on CRV overcharges. Since the memo in 2010 assessing that
they do not have the legal authority to investigate and
enforce overcharges of CRV, they have not been able to
respond to these complaints.
With this bill, the county sealers would be granted statutory
authority to respond to, investigate and potentially enforce,
through issuance of civil penalties, CRV overcharges.
As a violation of CRV charging is the purview of CalRecycle,
the authority should lie with CalRecycle to address these
violations. It is not apparent that the current actions by
CalRecycle in response to consumer complaints regarding CRV
overcharges are insufficient. In fact, from CalRecycle, it
seems that their follow-up on these charges that includes
AB 2251Page
5
validation of overcharges and education of store management
has been an appropriate response to address this issue.
However, if there is indeed a problem regarding statutory
limitation of CalRecycle to issue civil penalties for
violation of this section, then this issue should be remedied
by giving the appropriate enforcement authority to
CalRecycle. If this is instead an issue with regard to lack
of resources, then the appropriate course of action would be
for the Administration to submit a request to increase their
resources devoted to this capacity through the budget
process, with the appropriate policy language to implement
the augmentation, or authorize CalRecycle to enter into
agreements with other appropriate agencies to assist in the
enforcement of addressing CRV overcharges.
If the committee believes this issue needs to be
legislatively addressed, then an amendment is needed to
provide CalRecycle with the appropriate enforcement
authority, including the authority to enter into agreements
with appropriate agencies or departments, to address CRV
overcharges.
4) Do these overcharges affect the fund ? Because the Beverage
Container Recycling Fund is populated from CRV remit by
distributers directly to the fund, overcharges by dealers and
retailers do not affect the funds available for
administration of the program. The consumer is affected,
however, because when the beverage container is redeemed, the
consumer only receives the correct CRV from the recycling
center, or if the consumer was charged CRV on a container
that is not covered by the program, they are not able to
redeem their container and receive any CRV.
5) Arguments in Opposition . The California Grocers Association
currently has an oppose unless amended position. They state
that they are in support of expanding the authorization of
CDFA to investigate improper CRV charges, but oppose the
measure unless amended to remit 50% of the collected
penalties to CalRecycle to help alleviate budgetary
constraints of the program.
AB 2251Page
6
SOURCE : California Agricultural Commissioners and Sealers
Association
SUPPORT : Association of California Recycling Industries
OPPOSITION : California Grocers Association