Six soft drink bottlers and a local grocery retailer yesterday complained that Fairfax County's law restricting beverage sales beginning next Thursday is burdensome, unfair and vague and asked a Fairfax County judge to temporarily halt its implementation.
Circuit Court Judge James Keith did not rule on the request immediately but said, "I'll do the best I can" in making a decision before the ordinance is scheduled to take effect.
The law, designed to cut down on litter, was passed by the county Board of Supervisors on Dec. 8, 1975, and amended last June 6. It states that containers for all carbonated, non-alcoholic beverages sold in the county must be marked with a sticker saying "Washington Metropolitan area." Consumers are supposed to return the bottles, once they are empty, to stores in the county that sells beverages.The retailers must then pay at least 5 cents for each bottle.
Cans with removable lids, or "poptops," will be banned.Other throw-away beverages containers can be sold, but must have the sticker attached and be refundable for at least 5 cents at retail stores.
A Safeway grocery store spokesman, Ernie G. Moore, hinted after the hearing that if the ordinance stands, it will probably mean bigger prices for carbonated beverages sold in the county because of increased labor and other costs involved in complying with the measure.
He said that stores would not break even by merely raising the price by a nickel a bottle to cover the cost of the refunds.
Supervisor Alan H. Magazine (D-Mason) said he "deplores intimidating tactics" by the distributors and "regards this as a blatant, organized attempt on the part of the bottling industry to threaten the citizens and officials of Fairfax County in hope of winning over public support for a change in the ordinance."
The bottlers and the Foodarama Supermarkets in McLean, who said they are not prepared for Thursday's starting date, asked for a temporary injunction until a circuit court hears their case to overturn the ordinance.
George Johnson, an attorney representing the bottlers and Foodarama, said the ordinance does not specify whether the retailer, manufacturer or distributor is supposed to place the stickers on the containers. If the distributors must do it, will disrupt their distribution schedules, constituting a "severe and intolerable burden on interstate commerce," Johnson said.
The carbonated drink dealers also said they are being treated unfairly because the law does not apply to non-carbonated beverages and as amended this year, excludes alcoholic beverages from the restrictions.
Beer and other malt beverages were excluded because the ordinance would conflict with state Alcohol Beverage Control regulations.
"There's no difference between alcoholic beverages and soft drinks, how they're consumed how they're bought, how they're disposed of," Johnson said. The distinction "is not rational" and violates the bottlers' right to equal protection under the law, he added.
Among other unanswered questions, Johnson asked what would happen if someone bought a beverage from a gasoline station vending machine after closing and had nowhere to get a refund at that hour?
"Vending machines have never been able to give you a nickel back, a quarter back or anything else unless they are malfunctioning," Johnson said.
Assistant county attorney William Arnold answered, "I suggest [the consumer] bring it back in the morning."
Arnold argued that "the county of Fairfax has said, 'We're tired of picking up these bottles. The taxpayers are tired of paying men to pick up these bottles."
The bottlers have known about the ordinance for 20 months, Arnold said, and their request yesterday was just a delaying tactic, "a smokescreen, a puffery."
The distributors, Arnold continued, "should be responsible to dispose of the cans," once they are returned by consumers. "That's where we feel the responsibility should be - the ones who make the profit."
Arnold presented a Falstaff beer can with a marking on top that is used under Vermont's beverage container ordinance as proof that the distributors or retailers here can do the same.
The ordinance will not cause "injury of great magnitude," Arnold said.
Safeway's Moore said after the hearing that stores may incur increased labor and other costs from marking bottles, collecting containers, storing the returned bottles, increased sanitation due to the empty bottles for disposal. Moore also said he does no know where the empty containers could be dumped.