[Below is a copy of a letter that the Wisconsin Department of Agriculture, Trade and Consumer Protection wrote to Miller Brewing regarding their plastic beer bottle. Key issues include the recyclability of this bottle and the labeling of the bottle as to the type of resin that it is made of and labeling the bottle as "recyclable". This letter was prompted in part by concerns that local recyclers have on the introduction of this bottle.] February 26, 1999 John N. MacDonough Chief Executive Officer Miller Brewing Co. 3939 West Highland Blvd Milwaukee, WI 53201-0482 Dear Mr. MacDonough: Miller Brewing Company recently began test marketing a newly designed plastic beer bottle in 20-ounce and one liter sizes in several metropolitan areas in the U.S. We have read about recycling-related problems and concerns associated with this newly designed container -- issues that are detailed in an EPA-funded multi-state Plastic Redesign Project report, entitled "The Potential Impacts of Plastic Beer Bottles on Plastics Recyling." I am writing to give you a "heads up" on several Wisconsin laws and regulations affecting environmental marketing claims and plastic container packaging design associated with sales and distribution of consumer products in the state. I believe a thorough discussion and early resolution of concerns will certainly prevent compliance related problems down the road. Additionally, I wish to offer any assistance or guidance to Miller Brewing Company related to compliance with these environmental standards in the event that test marketing of the plastic beer bottle is successful. Sale of Nonrecyclable Materials S. 100.29, Stats., requires the Department of Agriculture, Trade and Consumer Protection (DATCP) to investigate complaints of any new product packaging for which there may be inadequate markets to make recycling of this packaging economically feasible. This law states "if the department determines that the product has been in commerce in this state for at least three years and the complaint is well-founded, it shall inform the manufacturer or distributor of the new packaging and attempt to ensure an adequate market within a reasonable period through negotiations." The statute further directs DATCP to identify by rule any type of new packaging for food or beverages for which negotiations did not yield a satisfactory result. The enclosed Plastic Redesign Project report cited previously acknowledges the need for product manufacturers to innovate packaging to remain competitive, and it also provides helpful information how that innovation can proceed so "there is....an adequate market to make recycling of a type of new packaging economically feasible", to quote the verbage of s. 100.29, Stats. Although s. 100.29, Stats., was enacted in 1990, the Department has never received a formal complaint triggering a negotiation process and rulemaking to ensure adequate recycling markets. In light of some of the concerns expressed with regard to the current plastic beer bottle design, however, it is not unreasonable to expect the filing of a complaint on this specific packaging. Plastic Resin Coding Requirements S. 100.33, Stats., and ch. ATCP 137, Subchapter II, Wis. Adm. Code, detail requirements for labeling plastic containers based on resin composition. The purpose of these requirements is to provide basic information needed by material recovery operations to facilitate plastic recycling. The requirements are patterned after industry guidelines of the Society of Plastics Industry (SPI), but less flexible in some respects. The law prohibits the wholesale and retail sale of plastic containers or products in such plastic containers which fail to comply with the labeling requirements set forth in department rules. Generally, the rules require all plastic containers, 8 ounces or larger, to be labeled with a number inside a triangular symbol, and letters underneath the symbol, identifying the resin composition of the container. We understand that the plastic beer bottle designed for Miller Brewing Company will consist of five layers of polyethylene terephthalate (PET), and two thin, non-PET barrier layers of polyamide comprising less than 5% of the container by weight. Ch. ATCP 137.13(2)(a), Wis. Adm. Code, states that "If the plastic container is made of polyethylene terephthalate, the number "1" and the letters "PETE" with the symbol" shall be used. On the other hand, ss. ATCP 137.13(2)(g) of this rule states that "If the plastic container is made of other resins or of multiple resins, the number "7" and the word "OTHER" with the symbol" shall be used. Thus, the current Miller Brewing Company plastic beer bottle would need to be labeled with the number "7" under our current rules. An exception to ss. ATCP 137.13(2)(g) states that "A plastic container whose label or base cup is composed of a different resin shall be labeled according to the container's principle resin." However, the Miller bottle would not appear to fit this exception in order to be labeled a number "1". This, of course, presupposes that Miller Brewing Company's plan was to label the bottle as a PET container. Environmental Labeling of Recycled, Recylable or Degradable Products S. 100.295, Stats., requires DATCP to establish standards that must be met by products in order for those products to be labeled or otherwise represented as "recycled", "recyclable" or "degradable". The Department accomplished this directive in 1994 with the final adoption of ch. ATCP 137, Subchapter I, Wis. Adm. Code. Provisions related to recyclability representations are found in ss. ATCP 137.05, Wis. Adm. Code. This states that "No person may represent, without qualification, that a product is recyclable unless the product is entirely composed of materials that satisfy all of the following requirements: (a) The materials can be collected, separated or otherwise recovered from the solid waste stream by recycling systems that are readily available to a substantial majority of the population in the area where the product is sold, using normal methods of operation. (b) The materials recovered under par. (a) can, by means of established commercial processes, be processed and reused as raw materials for the manufacture of new products." Nor may a product or container manufacturer misrepresent that a product is "compatible (emphasis added) with suitable recycling systems that are readily available in the area where the product is sold." Our current rules state "If, because of the product's size or shape, or for any other reason, a product is incompatible with recycling systems, no person may represent that the product is recyclable." Again, this discussion presupposes some intention by Miller Brewing Company to incorporate some sort of environmental representation in the marketing of the currently designed plastic beer bottle. Request for Information Only recently have we been told of some of the recycling concerns associated with plastic beer bottles. This is a new issue for us as it is a new packaging technology for you. However, the basic thrust of the concerns is that widespread introduction of currently designed plastic beer bottles will degrade the existing economics of recycling. According to the report of the Plastic Redesign Project, Miller Brewing Company's vendor -- Continental PET Technologies -- is pursuing a detailed procedure to evaluate the recyclability of the bottle's barrier material, including commercial testing, autosorting color systems, and analysis of the feasibility of developing internal markets for the amber tinted material. These are important elements for determining not only the technical but also the economic feasibility of recycling the multi-layered plastic beer bottle. Other determining factors for judging the recyclability of the proposed bottle design are the container cap and label. We would greatly appreciate efforts by Miller Brewing Company to keep us informed of any commercial testing results and marketing analysis conclusions associated with introduction of the multi-layered plastic beer bottle. In the meantime, we are pleased to extend again our assistance to ensure compliance with the various plastic container labeling regulations which we are responsible for administering and enforcing. I can be reached at 608-224- 4944 if there are any questions or concerns on the part of Miller Brewing Company representatives. Sincerely, Tom Stoebig. Regulatory Specialist Environment & Product Safety Section Bureau of Consumer Protection cc: Merry Fran Tryon, Director Bureau of Consumer Protection
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