Extended Producer Responsibility Legislation Update

Nearly a dozen proposals for packaging producer responsibility have been brought forth already this year. Learn how they differ and how they are alike in their strategies.

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Extended Producer Responsibility (EPR) is premised on the concept that those who produce waste should be responsible for defraying the costs of managing that waste at its end of life. EPR fees and programs have been assigned to several products in the U.S.—among them batteries, carpet, light bulbs, and mattresses. Calls to expand EPR to packaging have existed for the past decade, and in more recent years, there has been an increase in proposed legislation to implement such. Early 2021 has brought forth nearly a dozen proposals in at least seven states related to packaging producer responsibility, as well as anticipation of a federal bill to be re-introduced this year with similar language. 

Given that at least one state this year is likely to enact fees on packaging to improve recycling, it’s worthwhile to explore some of the approaches being taken among the various bills and highlight some of their differences and similarities. There are many different stakeholders within the packaging industry working on proposals, and many share basic principles and objectives. Collaborative efforts are ongoing among these stakeholders to ensure we speak in a unified voice to advance proposals we believe will work best for the entire packaging value chain.

How EPR is defined will have a significant impact on who is required to pay, and in some cases, packaging design is considered. Most of the proposals cover more than just packaging, including some combination of foodservice containers, single-use bags, and/or printed material. Some go further, adding in beverage containers and shipping and moving containers, for example. Almost all are focused on consumer-facing primary, secondary, and tertiary packaging, and this is an important distinction. There are strong arguments as to why packaging used within business-to-business transactions should be out of scope, since this is generally not consumer facing and since recycling and recovery systems for such should already exist. Policy arguments will be made to exempt some packaging and products (i.e., beverage containers already covered under a state deposit program, reusable containers and packaging, medical devices and products, hazardous materials, etc.), and those will have to be considered as they are raised.

In terms of who would be responsible for financing the recovery and recycling of covered products and packaging, most of the proposals place primary responsibility on consumer brand companies, followed by distributors, and then retailers and/or importers. Packaging manufacturers would generally not be considered responsible given they may have no idea where their products ultimately end up after potentially traveling through interstate commerce channels. However, it’s likely that costs will trickle down, and the majority of the packaging supply chain will at least indirectly see some additional costs.


See: Recycled Content Mandates: Pros and Cons


One distribution channel AMERIPEN is investigating further to understand potential policy implications is e-commerce, as policymakers want to—and for the sake of equity should—ensure related packaging is captured in any laws that advance. But it’s less clear how to determine exactly who the responsible party might be, since packaged products and their secondary and tertiary packaging often come into play at different times, and even in different states, as they move separately and then together through e-commerce distribution channels.

The various related proposals put forth by states are very inconsistent. Some require meeting certain recycling, recyclable, reusable, and/or compostable rates by certain dates, while others require meeting recycled content rates by a certain date or do not state any goals. Only some require curbside and/or multi-family recycling access, while nearly every proposal requires some level of consumer education and litter abatement support.

The goals set will inform packaging system objectives, including where funding is focused as well as where design is emphasized. Given that packaging is typically designed for national or international needs, extreme variability in goals will further complicate objectives to achieve success. This is one reason AMERIPEN is advocating at the state level for the ability to form a national organization to help set goals and objectives informed by local needs but harmonized across regions and states. We continue to promote the idea that further stakeholder engagement and collaboration are clearly merited on policy for all potential goals and requirements. This is true for existing and proposed state or other definitions that might be utilized and what is feasible from industry and market perspectives. It also applies to identifying what is best determined and set by statute or regulatory authority versus being done by the responsible parties who can demonstrate and justify positive environmental improvements that are also technologically and commercially feasible.

Organization and decision making

How producer fees are collected, disbursed, and overseen are key aspects of any EPR program. Many in the packaging strongly believe that if they’re expected to pay for packaging recovery, then they should have control over how those investment dollars are spent. Others feel we need the perspective of the full value chain to inform where the greatest needs and opportunities for system change exist. A producer responsibility organization (PRO), also sometimes referred to as a product stewardship organization (PRO) or stewardship responsibility organization (SRO), would be the entity formed by responsible parties and required under statute to operate the stewardship program, assess and collect payments from responsible parties, and support recycling and recovery activities as well as investment.

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