Is your business prepared for the Extended Producer Responsibility deadlines that are now taking effect across multiple US states? With compliance requirements already in force and additional deadlines rapidly approaching, manufacturers and importers need to act quickly to avoid financial penalties.
This analysis by Maram Salaheldin and Jacqueline Scoboria from Clark Hill PLC is essential reading for manufacturers, importers, and brand owners who produce or distribute packaging materials, paper products, or food serviceware in the United States. The article provides crucial guidance on understanding your obligations and navigating the complex state-by-state requirements that could significantly impact your business operations and costs.
Understanding these requirements now is vital for avoiding penalties and ensuring continued market access across affected states.
What is Extended Producer Responsibility?
Extended Producer Responsibility frameworks shift the responsibility for end-of-life management of materials to the producers of those materials. This means companies must handle recycling and disposal costs for their packaging, paper products, and food serviceware.
The laws typically require obligated producers to register for EPR programmes, report data about covered materials, and pay fees into state EPR systems. The goal is enhancing recycling services, reducing waste, and encouraging product reuse.
However, determining whether you’re an obligated producer requires careful evaluation of your business operations against varying state requirements.
Which states have EPR laws?
Seven US states have enacted EPR laws for packaging: California, Colorado, Maine, Maryland, Minnesota, Oregon, and Washington. More states continue proposing similar legislation.
Key legislation includes:
- California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54)
- Colorado’s Producer Responsibility Programme for Statewide Recycling Act (HB 22-1355)
- Oregon’s Plastic Pollution and Recycling Modernisation Act (SB-582B)
- Minnesota’s Packaging Waste and Cost Reduction Act (HF 3577)
Each state’s approach varies slightly, creating a complex compliance landscape for multi-state operations.
Understanding covered materials
“Covered materials” typically include packaging materials such as cardboard, plastic, and glass. Single-use foodservice items like sandwich containers, takeaway boxes, and paper cups also fall under these requirements. Certain paper products including magazines and coupon booklets may be covered too.
Different materials have specific definitions with various exclusions. For example, packaging for federally-regulated medical devices is often excluded from coverage.
The specific materials covered vary between states, making careful review of each state’s requirements essential.
Who are the obligated producers?
Obligated producers are identified through a designated hierarchy that varies slightly between states. Generally, the hierarchy follows this order:
First: Brand owners take primary responsibility Second: Brand or trademark licensees step in if brand owners aren’t present in the US Third: US importers become responsible if neither brand owners nor licensees are present
This hierarchy ensures there’s always an accountable party within the United States for compliance obligations.
Compliance options available
Obligated producers can pursue individual compliance plans or join a Producer Responsibility Organisation (PRO). Individual compliance is typically more challenging and costly than joining a PRO. It may also require pre-approval from relevant state agencies.
Currently, the Circular Action Alliance serves as the PRO for all states that have selected one. Each state sets deadlines for actions like providing notice of intent to pursue individual compliance, registering with the PRO, or stopping sales of covered materials without approved compliance plans.
State-specific variations: Oregon and Colorado examples
Oregon’s unique approach to food serviceware creates different obligations. The obligated producer for food serviceware is simply the person who first sells these items in or into Oregon, bypassing the conventional producer hierarchy.
Colorado excludes business-to-business packaging from coverage. This means packaging used in B2B transactions not intended for end consumers, plus materials used solely for transportation or distribution to non-consumers, are exempt. This includes shipping boxes, pallets, and pallet wrap.
Oregon excludes returnable beverage containers since they’re covered by bottle deposit legislation. Colorado would have similar exclusions, but lacking deposit legislation, beverage bottles and secondary packaging remain covered materials.
Available exemptions
Some businesses may qualify for limited exemptions under state programmes. “Small producers” typically fall below certain global revenue thresholds (such as $5 million in Oregon) or tonnage limits (less than one ton in Colorado during the prior calendar year).
Exemptions may also cover nonprofit organisations and state or local governments. Colorado offers additional industry-specific exemptions for builders, construction companies, and construction contractors.
However, exemption criteria vary significantly between states, requiring careful evaluation of each programme’s specific requirements.
Essential steps for compliance
Companies that suspect they may be obligated producers should take immediate action:
- Evaluate your status: Determine whether you’re a producer of covered materials under relevant state programmes through careful analysis of your business operations.
- Gather information: Collect data about your packaging, paper products, and food serviceware across all relevant states.
- Review exemptions: Assess whether your business qualifies for small producer or other exemptions in each applicable state.
- Choose compliance path: Decide between individual compliance plans or joining the relevant PRO for each state.
- Meet deadlines: Ensure you comply with registration and notification deadlines, particularly in Oregon and Colorado where recent deadlines have passed or are approaching.
- Monitor developments: Keep track of legislative and rulemaking changes across states where you operate.
- Consult experts: Work with legal counsel familiar with EPR requirements to navigate the complex regulatory landscape.
The EPR landscape continues evolving rapidly across the United States. More states are considering similar legislation, and existing programmes are refining their requirements through ongoing rulemaking processes.
Companies operating across multiple states face particularly complex compliance challenges as requirements vary significantly between jurisdictions. Early preparation and ongoing monitoring are essential for successful compliance.
The financial implications of non-compliance can be substantial, making proactive compliance planning a business necessity rather than just a regulatory requirement.
Ready to navigate US Extended Producer Responsibility requirements? Our team at Alura Group can help evaluate your obligations, identify applicable exemptions, and develop comprehensive compliance strategies across all relevant states.
