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Four States Enact Extended Producer Responsibility Laws for Packaging

Maine, Oregon, Colorado, and California now have packaging producer responsibility laws. Here’s what you need to know about each.

Dan Felton discusses EPR Laws
Dan Felton, Executive Director, AMERIPEN discusses EPR Laws

Packaging extended producer responsibility (EPR) programs are quickly ramping up across the country. In the past 14 months, four states—Maine, Oregon, Colorado, and California—have passed laws, and in 2022, 40 EPR-related bills in 19 states have received consideration. In addition, two bills with producer responsibility language are now under consideration in the U.S. Congress.

As the trajectory for this lawmaking continues, it’s critical that industry stakeholders understand the details and timing of these new laws. Here’s a look at what producers can expect in each state.

Maine

In July 2021, Maine became the first state in the country to have a packaging producer responsibility law (LD 1541). The scope covers packaging that leaves with the consumer from the point of sale or is received by the consumer via e-commerce channels. Similar to existing programs throughout the world, the producer, or responsible party, is the brand owner or the sole importer into the U.S. if there’s no brand owner. The law also contains some significant, yet loosely defined, exemptions for sales and tonnage, as well as for salvage and closeout businesses. Beverage containers covered under the state’s bottle bill are also exempt. Exemptions for federal regulated products may be considered later.

In general, many of the statute’s critical details are yet to be defined, and the law’s complexity gives significant power and decision-making authority to the state’s Department of Environmental Protection (DEP), with limited stakeholder engagement. For example, the DEP must use a request for proposal process to select and award a 10-year direct contract to one producer responsibility organization (PRO). The PRO is expected to receive input from producers and others for its annual plan, but that’s not a binding requirement, and the law does not call for an advisory committee to the DEP or PRO.

In July 2021, Maine became the first state in the country to have a packaging producer responsibility law (LD 1541).In July 2021, Maine became the first state in the country to have a packaging producer responsibility law (LD 1541).The DEP will approve several important actions submitted by the PRO, including its initial needs assessment and annual reports and investment budgets. The DEP also will define “readily recyclable” packaging material in the initial regulatory phase and then again annually. AMERIPEN anticipates that packages that are sortable in Maine and have a positive market value are likely to be key drivers, and for materials to gain or lose recyclable status will be specified.

In comparison to some of the other bills currently in debate, program and recycling goals are undefined in Maine’s statute, but the law’s language strongly suggests that the DEP has the authority to decide them. While AMERIPEN is not in favor of the DEP defining rates and dates via regulation, if the DEP proceeds, we will advocate this only be done after the statewide recycling needs assessment is performed.

Producers will fund 100% of Maine’s existing recycling system, and fees will be set by volume—either by weight or by units. Readily recyclable products will pay less in this structure. The PRO will develop, and the DEP will approve, an eco-modulation (fee adjustment) formula based on recycled content, source reduction, litter reduction, access and recycling rates, and where the material is performing in the recycling system. Additionally, the PRO will fund infrastructure development in Maine, but all projects must be approved by the DEP.


Read article   Read related column from Ben Miyares, “Consumer Preference, not EPR, Driving U.S. Packaging.”


Overall, Maine’s timeline is much slower than the Oregon and Colorado laws that will have more direct PRO and industry stakeholder involvement. The first producer payments won’t become due until 2026, after all rulemaking is final and the DEP selects a PRO.

Oregon

Several weeks after Maine, Oregon became the second state to establish a packaging producer law (SB 582). Different than Maine, it covers not only packaging, but also paper and food serviceware, with exemptions for beverage containers covered under the state’s bottle bill and for specific product types and materials and small producers. Like other existing programs, producer responsibility falls on the brand owner, the licensee of a brand or trademark, or the first importer into the country; however, Oregon’s bill was the first to contain a more precise definition of an e-commerce packaging producer.

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