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Packaging Policy Update and 2023 Outlook

AMERIPEN Executive Director Dan Felton and the association’s principle lobbyist, Andy Hackman of Serlin Haley, break down current state and federal policy and what to expect in the coming year.

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Overwhelmed by the quickening pace of packaging legislation and what it means for your company? In this annual Q&A, AMERIPEN Executive Director Dan Felton and the association’s principal lobbyist, Andy Hackman of Serlin Haley, break down current state and federal policy and what to expect in the coming year.

Packaging World:

The trend of more states enacting Extended Producer Responsibility [EPR] laws continued in 2022. Can you tell us more about that and what packaging companies can expect regarding implementation of those laws? Will there be more laws enacted in 2023?

Dan Felton, Executive Director, AMERIPENDan Felton, Executive Director, AMERIPENDan Felton:

Following Oregon and Maine in 2021, California and Colorado enacted their own packaging producer responsibility laws in 2022. Like their predecessors, packaging producers in these two new laws are generally defined as brand owners first, followed by brand/trademark licensees or owners, and then importers of covered packaging into the states. Packaging producers will start paying into all these new systems over the next three to four years—Colorado and Oregon in mid-2025, Maine in late 2026, and California in early 2027.

Oregon is moving the quickest with implementation, with a committee, council, and workgroup already discussing and formulating various components of the new law for rules to be proposed and implemented thereafter. Maine began an 18-month stakeholder engagement process in December to gather information that will inform their rulemaking, while Colorado seated its program advisory board in December. California will get underway with its implementation processes by seating its advisory board in mid-2023. Just as they were with the legislative process leading up to the enactment of these new laws, brand owners and packaging companies are strongly encouraged to also get involved in the implementation and rulemaking for these new packaging producer responsibility laws, as there is still ample opportunity to influence the development of these new programs.

Andy Hackman, Principal Lobbyist, Serlin HaleyAndy Hackman, Principal Lobbyist, Serlin HaleyAndy Hackman:

In 2022, we saw 40 bills across 18 states addressing packaging producer responsibility in some way. We anticipate that trend will continue in 2023, especially considering the impact of the 2022 elections, and we will probably have even more proposed bills in more states and perhaps one or two more states enacting something into law. AMERIPEN is already, and will continue to be, deeply involved in the discussions and negotiations in these states to help shape the best possible outcomes for packaging companies.

With four state packaging producer responsibility laws that are not alike, is there any possibility a federal bill gets enacted?

Hackman:

The Break Free from Plastic Pollution Act [BFPPA] and the CLEAN Future Act from the last session of Congress both included packaging producer responsibility language, and it’s likely that one or both bills will be reintroduced into the new Congress in 2023. BFPPA, in many respects an “anti-plastic” bill, included language to establish a national packaging producer responsibility program. CLEAN, a broader climate change action bill, carried many provisions from BFPPA, including language to establish a taskforce to study the possibility of a national packaging producer responsibility program. It’s unclear how much traction either of these bills, including their packaging producer responsibility language, might gain in 2023 given the partisan split in Congress and more pressing legislative priorities. However, discussions continue to grow in Congress, and in the long-term, there is potential for some legislation to pass if the politics align.

Felton:

AMERIPEN continues to believe there is merit in the packaging industry engaging at the federal level or across multiple states at the regional level on packaging producer responsibility to avoid a patchwork of onerous state laws with different requirements placed upon packaging companies and owners. This is even more so with enactment of the new laws in 2022 in California and Colorado that were not aligned with each other or the previously enacted laws in Maine and Oregon.

Might we see traction on any other packaging and recycling issues at the federal level in 2023?

Hackman:

In 2022, AMERIPEN supported the Recycling Infrastructure and Accessibility Act [S.3743/H.R.8183] and the Recycling and Composting Accountability Act [S.3742 /H.R.8059]. The Recycling Infrastructure and Accessibility Act would provide grants for projects to make recycling programs more accessible to rural and disadvantaged communities. The Recycling and Composting Accountability Act would require the development of data to provide the U.S. Environmental Protection Agency [EPA] the resources that will help inform real and actionable composting and recycling policy with improved collection and access to reporting and data across current and emerging recovery and recycling materials and technologies.

While these two bills were not enacted in 2022, AMERIPEN hopes they will be reintroduced in Congress in 2023 and ultimately enacted to further improve and innovate the current packaging recovery infrastructure in the U.S., including for systems that can recover compostable packaging. 


    Read this recent column from AMERIPEN’s Dan Felton on the four states with EPR.


Felton:

AMERIPEN also hopes to see additional traction in 2023 on implementation of the EPA’s National Recycling Strategy that began in 2022 to expand data collection, standardize recycling definitions, and advance end-market development for recycled materials. Finally, AMERIPEN is optimistic there may be some consideration of federal uniformity around the issue of recyclable, compostable, and reusable labeling for packaging following enactment of rather onerous legislation in California in 2021 that will restrict recycling messaging on packaging beginning in 2025.

With other states actively considering similar legislation, AMERIPEN believes the EPA and the U.S. Federal Trade Commission [FTC], which may soon begin a formal review of its Green Guides, are good forums for efforts to establish national definitions and a labeling language so we can avoid multiple state-specific labeling standards, which we believe will result in increased consumer confusion and additional packaging material going to landfill. It appears there will be ample additional opportunities for packaging companies to engage at the federal level this year on packaging policy for recycling, recyclability labeling, increased recovery, and end-market development.

Recycled content continued to be a big issue in 2022, including proposed legislative mandates. What’s happening there, and how should packaging companies be planning for this?

Hackman:

Following Washington State’s relatively broad recycled-content mandate law in 2021, which includes plastic beverage containers, household and personal care products, and trash bags, New Jersey went even further in early 2022, enacting a new recycled-content mandate law covering rigid plastic containers, glass containers, paper and plastic carryout bags, and plastic trash bags.

In November, the New Jersey Department of Environmental Protection [DEP] began a stakeholder engagement process that should continue well into 2023 and offers an excellent opportunity for packaging companies to help shape pending rulemaking around this new law. Washington State considered legislation to expand its 2021 recycled-content mandate law to additional forms and types of plastic containers, but that bill language failed to advance. AMERIPEN expects to see some form of that language introduced again in 2023, along with several other states likely to consider recycled-content mandates as standalone legislation or wrapped into packaging producer responsibility proposals.

Felton:

There were a handful of other state legislatures that considered recycled-content mandates in 2022, including an onerous proposal in California that would have mandated recycled content specifically for thermoform containers. It was ultimately vetoed by Governor Gavin Newsom who recognized that enacting such a proposal right on the heels of the state’s new packaging producer law that contains recycled-content language didn’t make a whole lot of sense.

AMERIPEN released a study in 2021 that looked at packaging goals for recycled content versus available supply and capacity. At that time, we identified a shortfall for all plastic resins except for high-density polyethylene. Now add in more state mandates and more companies increasing their post-consumer recycled content goals, and that pressure is anticipated to increase. This could add significant pressure and additional complexity on smaller converters and brands, further exacerbated by the slow pace of U.S. Food & Drug [FDA] approvals for food-contact recycled content. Packaging World readers are encouraged to join AMERIPEN in discussions in 2023 to help shape legislative and regulatory outcomes that are achievable and reasonable and that recognize that “one size” doesn’t always fit all.

AMERIPEN has been working with PMMI on a packaging trends study. Can you tell us more about this and why it matters to AMERIPEN?

Felton:

AMERIPEN has been collaborating with PMMI – The Association for Packaging and Processing Technologies to learn more about the trajectory of packaging design over the next 10 years and the factors that will drive cutting-edge innovation. Through a survey and a series of focus groups and workshops, we heard from more than 400 Consumer Packaged Goods brands, converters, raw material suppliers, and operation equipment manufacturers, and we were able to identify which materials and packaging formats are on the rise or in decline. Their input also helped isolate when and where packaging substitutions might occur and offered insights into the dynamics fueling such decisions. Working with peers and stakeholders, we then explored the potential implications of these packaging shifts on public policy and our recovery systems.


    Listen to this podcast on the results of AMERIPEN and PMMI’s packaging trends study.


The study, which should be released this month, indicates that public policy is not fully aligned with the projected growth of some packaging materials (i.e., compostables and flexibles) and the need for more recycled content and that proactive public policy should look beyond just design for recycling and toward more recycling infrastructure and innovation. We believe this forward-looking perspective will help advance necessary dialogue to ensure recycling investments through packaging producer responsibility or federal or state funding initiatives to address recycling infrastructure are directed toward the future needs of the system and not just to support the system as it’s designed today.

Any other packaging policy considerations you think our readers should know about as 2023 begins?

Hackman:

There was an increased focus on toxics in packaging in 2022, with ongoing interest from policymakers in certain chemicals, like PFAS and phthalates, either in or used to manufacture packaging and other products. This trend is expected to continue in 2023. There was also an increased focus on advanced, aka chemical, recycling in 2022 that will likely continue during 2023 at least within the context of packaging producer responsibility and recycled-content discussions. Finally, there is a growing policy discussion about the potential for additional deposit return systems, aka bottle bills, in the U.S. as some material sectors see that as a path forward to increasing the use of PCR content while some environmental organizations want beverage containers to be covered by this policy rather than packaging producer responsibility. This may result in more traction for bottle bill proposals at the state level, as well the potential for some more pressure at the federal level for a national bottle bill.

Felton:

Overall, AMERIPEN believes 2023 will be one of our most active years for packaging policy ever. We encourage PW readers to get involved with their trade associations, state chapters, and chambers, and/or AMERIPEN to ensure their voices are heard. —Anne Marie Mohan

AMERIPEN, a material-neutral trade association for the packaging industry, is focused on the intersection of packaging policy and the environment and educates the industry on the value of packaging.

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