STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5910

May 26, 1981

BOTTLES AND BOTTLING:

Obligation of dealer to accept returnable containers

1976 PA Initiated Measure requires a dealer or distributor to redeem a beverage container which meets all three conditions of kind, size and brand as sold by the dealer or distributor.

Honorable Perry Bullard

State Representative

The Capitol

Lansing, Michigan

You have asked my opinion on the following question:

Your question involves 1976 PA Initiated Measure; MCLA 445.571 et seq; MSA 18.1206(11) et seq, which was adopted by the electors of Michigan on November 2, 1976, and which took effect on December 3, 1976, but Section 6 made it effective two years later. Designed to conserve natural resources and reduce litter, the law provides for a system of deposits and refunds on all soft drink and malt beverages sold in beverage containers within the State.

1976 PA Initiated Measure, supra, Sec. 1, defines 'dealer' and 'distributor' as follows:

As last amended by the Legislature by 1977 PA 270, 1976 PA Initiated Measure, supra, Sec. 2, in pertinent part, sets forth the requirements which a dealer must observe in regard to refunds of deposits on beverage containers:

In 1976 PA Initiated Measure, Sec. 2(4) and (6), supra, the people have provided that dealers and distributors must redeem a beverage container of the same kind, size and brand which they sell. While the term 'and' appearing in a statute may be read in the disjunctive as 'or' where necessary to accomplish the obvious purpose of the statute, Elliott Grocer Co v Food Market, Inc, 286 Mich 112; 281 NW 557 (1938), it is not appropriate to do so here. 1976 PA Initiated Measure, Sec. 2(4) and (6), supra, does not manifest a clear intent that a dealer be required to accept an empty container for any brand not sold by the dealer. Thus, the term 'and' may not be read as 'or' with respect to these portions of 1976 PA Initiated Measure, Sec. 2(4) and (6), supra, and accordingly, no duty is imposed by 1976 PA Initiated Measure, Sec. 2, supra, upon a dealer to redeem beverage containers of any kind, size or brand not sold by the dealer.

It should also be noted that in 1976 PA Initiated Measure, Sec. 3, supra, the Liquor Control Commission is authorized to approve and certify a container if it is of such design as to kind and size as to be reusable by more than one beverage manufacturer. Once certified, such reusable containers require at least a five-cent deposit. 1976 PA Initiated Measure, Sec. 1(c), supra, requires a deposit of not less than ten cents on other beverage containers sold in the State. Although Section 3, supra, was adopted to promote the use of containers of uniform design (identical in kind and size) and thus, promote reuse through refilling with beverages by more than one manufacturer, 1976 PA Initiated Measure, Sec. 2, supra, does not require dealers and distributors to redeem a certified reusable container which is of a brand not stocked by the dealer. Nor does 1976 PA Initiated Measure, supra, preclude the dealer from charging a fee for redeeming a nonreusable beverage container not sold by the dealer, 1976 Initiated Measure, Sec. 1(c), supra.

It is my opinion, therefore, that 1976 PA Initiated Measure, supra, only requires a dealer or distributor to redeem a beverage container that meets all three conditions of kind, size and brand as sold by the dealer or distributor. It is further my opinion that there is no provision in 1976 PA Initiated Measure, supra, proscribing a dealer or distributor from charging a service fee to redeem beverage containers which are different in kind or size or brand from those sold by such dealer or distributor.

Frank J. Kelley