States Enact Packaging Producer Responsibility Laws

California, Colorado, Oregon, Maine, and Minnesota have passed and are beginning to implement Extended Producer Responsibility (EPR) laws. These laws target the use of plastics and single use packaging and are broader than any previously enacted.  They apply not only to manufacturers of plastics and containers, but to distributors, licensees, importers, retailers, and wholesalers of those products—all of whom fall within the definition of “Producers” under the laws. Affected Producers must comply with differing requirements across each state. Although the U.S. Senate has held hearings on EPR laws, there are no federal EPR requirements, leaving Producers to come into compliance with different laws in different states. 

EPR laws assign Producers with operational and/or financial accountability for managing their disposal. Producers are often required in several states to join a Producer Responsibility Organization (PRO) in order to fulfill their regulatory obligations.[i] In California and Colorado, the Circular Action Alliance (CAA) has been selected as the PRO.[ii] In Oregon, CAA is the only entity that has applied to be a PRO. CAA is urging Covered Producers to register as quickly as possible.[iii] CAA is encouraging Producers to act by giving access to exclusive resources to those companies that register.[iv] The first upcoming regulatory deadline to join the PRO is in Colorado on October 1, 2024.[v]

Understanding the building blocks of EPR legislation

Though each state’s EPR law is slightly different and has its own implementation timeline, they all share some common components. 

Covered Producers: First, they designate which entities are covered. The laws tend to target Covered Producers in tiers, first targeting those entities that manufacture the underlying product, and then the distributor or retailer. Notably, a single product can implicate multiple Covered Producers.[vi] 

Covered Products: Second, they define the set of products covered by each state’s legislation—“Covered Products.” It is important to clarify that the term “Covered Product” in these laws does not refer to the underlying good being sold, but instead to the materials used to package, ship, serve, and/or display the good being sold. Depending on the scope of the particular law, examples of Covered Products may include packaging, single-use packaging, plastic packaging, food service ware, and glass containers. EPR laws also define which products are exempt. For example, most state packaging EPR legislation exempts products like infant formula and packaging used to ship products with dangerous or hazardous materials that are already federally regulated.

Producer Responsibility Organizations: Third, many EPR programs require Covered Producers to join a PRO to fulfill their regulatory obligations, or in the alternative, provide a pathway for independent compliance. PROs have been used for some time in other sectors of the economy, including for paints, batteries, and electronics waste.[vii] While a fixture of most EPR laws, participation in a PRO will not necessarily shield producers from legal action if the program or downstream waste management processes are mismanaged. Some critics view PROs as an opportunity for large members to put the force of law behind their preferred policies.[viii] In the case of electronics EPR programs, mismanagement have led to producers, PROs, and recyclers being sued and prosecuted for violating both state and federal law. For example, in Ohio, a landlord sued manufacturers, as well as the electronics PRO, after their lessee, an e-waste recycler, entered bankruptcy and left over 150 million pounds of waste in its warehouses.[ix] 

State EPR laws typically describe when and how PRO(s) will be selected, as well as the broad outlines of the fee structure that the PRO will impose on its members. The PROs may then collect fees to contribute to a centralized state fund, or themselves distribute funds to those entities that collect and process the packaging material, as well as use funds for other purposes like consumer education. Every state that has passed packaging EPR legislation to date has specified that PRO member fees will be eco-modulated, meaning that they will vary depending on which materials a producer uses.[x] Additionally, the legislation typically lays out reporting requirements for the PRO, and empowers the PRO to collect data from its members. 

Targets: Finally, many packaging EPR laws include phased targets for recycled content, recycling rates, and product composition. For example, California has set a goal that 100% of single-use packaging sold in the state be recyclable or compostable by 2032.[xi] These targets will influence the market for packaging well beyond the states that implement them.

Covered Producers that play multiple roles—for example, operating both as manufacturers of their own brands and distributers of others—will need to consider how their obligations change depending on which hat they are wearing. They may also want to collaborate with partners to ensure contracts fairly allocate new costs as a result of these regulations. Finally, even without knowing how exactly fee structures will be imposed, brands may wish to consider collecting the relevant data and analyzing ways to reduce their future obligations. 

Below, we provide an overview of what we know so far about the EPR laws in California, Colorado, Oregon, Maine, and Minnesota. Because all five states are still in the process of proposing and finalizing rules, aspects of their programs may change.

California

California is one of the furthest along in terms of implementing its EPR regulations, and with its outsized market position, its packaging regulations will have a substantial impact. California Governor Gavin Newsom signed the Plastic Pollution Prevention and Packaging Producer Responsibility Act on June 30, 2022.[xii] The state is now in the midst of an ambitious rulemaking process.[xiii] As a first step, the state published the covered material categories and their recyclability and compostability evaluations at the end of 2023.[xiv] That same evaluation will not only inform the state’s EPR framework—it will also inform the state’s enforcement of green claims on those topics. 

• Covered Producers: Brands, distributors, licensees, manufacturers, importers, retailers, and wholesalers can all be Covered Producers.[xv] Those with less than $1 million annual gross sales in California are exempt.[xvi]
• Covered Products: Single-use packaging and plastic single-use food service ware are Covered Products.[xvii]
• PRO: CAA will be the sole PRO in California through 2030.[xviii] While Covered Producers have the option to comply without participation in a PRO’s plan, they must meet stringent requirements to do so.[xix]
• Targets: By 2032, California aims to ensure that 100% of the single-use packaging sold in the state recyclable or compostable, 65% of single-use plastic is recycled, and 25% less single-use plastic packaging is sold in the state.[xx] The legislation sets out interim milestones that the PRO must manage to in the years leading up to 2032.[xxi]
• Key Dates: CAA is urging Covered Producers to register with the association by July 1, 2024.[xxii] Producers who do not comply with the law will be barred from selling in California on January 1, 2027, or when a plan is approved by the PRO—whichever is sooner.[xxiii]

Colorado

Colorado passed the Producer Responsibility Program for Statewide Recycling Act on June 3, 2022.[xxiv] Colorado is in a similar position to California in terms of implementation—it is now considering a set of proposed regulations.[xxv] However, Colorado’s enforcement date is sooner than California’s.[xxvi]

• Covered Producers: Brands, licensees, manufacturers, importers, and retailers may be Covered Producers.[xxvii] Wholesalers and distributors in Colorado may have different obligations due to the unique scope of the law. Those producers with less than $5,320,000 in realized gross total revenue in the last calendar year or used or distributed less than one ton of covered materials for products into the state during the prior year are exempt.[xxviii]
• Covered Products: Colorado’s definition of Covered Products is substantively different than the other states’ definitions. It includes packaging materials that reach the “consumer at the point of sale” including products used for food or beverage consumption.[xxix] Packaging is covered regardless of what material from which it is made or its recyclability, as long as it is intended for single or short-term use and is used to deliver products to consumers at the point of sale, including through internet transactions.[xxx]
• PRO: CAA will be the sole PRO in Colorado through 2028.[xxxi] If a producer did not want to join the PRO, it was supposed to notify the state by January 1, 2024.[xxxii]
• Targets: The PRO is tasked with setting minimum collection rates, recycling rates, and post-consumer recycled content rates in its Program Plan, which has not yet been completed.[xxxiii]
• Key Dates: CAA urged Covered Producers to register with the PRO by July 1, 2024, though Colorado’s own deadline for registration with the PRO is October 1, 2024.[xxxiv] Covered Producers who do not comply with the law will be barred from selling in Colorado on July 1, 2025.[xxxv] 

Oregon

Oregon’s Plastic Pollution and Recycling Modernization Act became effective on January 1, 2022.[xxxvi] The rulemaking process is ongoing with a comment period closing July 26, 2024.[xxxvii] Though Oregon has not technically selected its PRO, CAA is the only applicant, and the state’s enforcement date is the same as Colorado’s: July 1, 2025.[xxxviii]

• Covered Producers: Brands, distributors, licensees, manufacturers, importers, retailers, and wholesalers can all be Covered Producers.[xxxix] Producers with less than $5 million in gross revenue in their most recent fiscal year and those that have sold less than one metric ton of covered product in or into Oregon are excluded.[xl]
• Covered Products: Packaging, printing and writing paper, and food service ware are all Covered Products.[xli] The definition includes, but is not limited to, materials used for the containment or protection of products, single-use bags, and nondurable materials used in storage, shipping or moving.[xlii] Packaging that is used for the long-term (five or more years) storage of a product with a lifespan of three or more years is likely to be exempt.[xliii]
• PRO: CAA was the only prospective PRO to submit a program plan to the state, indicating that it will be sole PRO.[xliv]
• Targets: The legislation sets out a goal that the statewide recycling rate for plastic packaging reach at least 25%, 50% and 70% by 2028, 2040, and 2050 respectively.[xlv]
• Key Dates: Producers must be a member of PRO before July 1, 2025 in order to continue to sell in or into the state.[xlvi] They are required to pre-register no later than March 31, 2025.[xlvii]

Maine

Though Maine was the first state to pass its packaging EPR legislation, having done so in July 2021, its implementation timeline is slower.[xlviii] For example, Maine has yet to issue a request for proposals (RFP) for a PRO and does not plan on selecting one until 2026.[xlix] Producers will not be barred from selling in the state if they don’t comply with the new law until one year following the PRO selection.[l] 

• Covered Producers: Brands, distributors, licensees, manufacturers, importers, retailers, and wholesalers can all be Covered Producers.[li] Producers with less than $5 million in total gross revenue during the prior year will be exempt for the first three years of the program, in addition to producers that sold or distributed less than one ton of packaging material in the prior calendar year; after the first three years, only producers with less than $2 million in total gross revenue during the prior calendar and producers that sold or distributed less than one ton of packaging material in the last calendar year will be exempt.[lii]
• Covered Products: Includes packaging at the time that the product leaves at point of sale or is received by the consumer of the product.[liii] It does not include packaging that is intended be used for the long-term storage or protection of durable product and that can be expected to be usable as long-term storage for a period of at least five years.[liv]
• PRO: Maine is referring to its PRO-equivalent as a “Stewardship Organization.”[lv] CAA has stated that it plans to respond to the RFP request once it is issued.[lvi]
• Targets: Maine is in the process of setting targets for recycling rates and reductions in packaging material used, among other things, as part of its rulemaking process.[lvii]
• Key Dates: The Stewardship Organization will not be selected until 2026, thereby delaying when producers need to act.

Minnesota

Minnesota is the latest state to pass a packaging EPR bill. The governor signed the Packaging Waste and Cost Reduction Act on May 21, 2024.[lviii] 

• Covered Producers: Manufacturers, licensees, brand owners, and importers may all be Covered Producers.[lix] For items sold via e-commerce, the entity that packages the product to ship the item is responsible for that additional packaging.[lx] Producers that have introduced less than one ton of covered material into the state or earned global gross revenues of less than $2 million in the last fiscal year are exempt.[lxi]
• Covered Products: Covered Products include packaging and paper products, including food packaging.[lxii] Covered Products excludes materials that a producer distributes to another producer, are subsequently used to contain a product that is distributed to e-commercial or business entity for the production of another product, and are not introduced to a person other than the commercial or business entity that first received the product used for the packaging of another product.[lxiii]
• PRO: Producers must appoint a PRO by January 1, 2025, which must register with the Commissioner of the State Pollution Control Agency (“the Commissioner”) by July 1, 2026.[lxiv] It will be the sole PRO until the first stewardship plan approved by the commissioner expires.[lxv] It does not seem that there is an alternative path to compliance—Covered Producers must join a PRO in Minnesota.
• Targets: The Commissioner is tasked with establishing statewide recycling, composting, reuse, return, and reduction targets, as well as post-consumer content requirements.[lxvi]
• Key Dates: Producers must appoint a PRO by January 1, 2025.[lxvii] Producers must become a member of a PRO by July 1, 2025, though they will not be barred from selling in the state without being a member of a PRO until 2029.[lxviii]

Next Steps

While many of the next steps will require effort from a brand’s packaging or sustainability teams, there is a role for compliance counsel going forward. Given the lack of uniformity across the state regulations, counsel can help brands, distributors, licensees, manufacturers, importers, retailers, and wholesalers to determine if they are a Covered Producer and, if so, which of their products are covered. Counsel can support risk assessment of the PRO membership agreements and can advise clients on how to meet data collection requirements and help negotiate obligations between various entities in the stream of commerce. Counsel can also play a critical role in determining how to reduce legal and financial liability given a company’s particular operations and business model. Finally, legal counsel can also serve as a Covered Producer’s liaison to the PRO and advocate for the organization to act responsibly on its behalf.

Please reach out to James Pollack, Zack Zahner, or any member of Marten’s Consumer Products practice with any questions regarding compliance with state packaging EPR laws.

The authors would like to thank Summer Associate Leni Hirsch for her work on this article.

[i] Introduction to the Guide for EPR Proposals, GreenBlue, https://epr.sustainablepackaging.org/ (last visited July 19, 2024). 

[ii] Producer Resource Center, Circular Action Alliance, https://circularactionalliance.org/producer-resource-center (last visited July 2, 2024) [hereinafter CAA Homepage].

[iii] Producer Registration, Circular Action Alliance, https://circularactionalliance.org/registration#:~:text=CAA's%20producer%20registration%20deadline%20is,CAA's%20producer%20responsibility%20program%20plans (last visited July 8, 2024).

[iv] Id.

[v] Errata Sheet Regarding Amendment of the Colorado Hazardous Solid Waste Regulations (6 CCR 1007-2), Part 1, Section 18, Producer Responsibility Rulemaking (proposed May 21, 2024) at 6. See also How to Register, Circular Action Alliance, https://circularactionalliance.org/registration (last visited July 15, 2024). 

[vi] See Plastic Pollution Prevention and Packaging Producer Responsibility Act Regulations (proposed Mar. 8, 2024) (to be codified at 14 Cal. Code Regs. § 18980.1(a)(27)(B)).

[vii] Homepage, Product Stewardship Institute, https://productstewardship.us/ (last visited July 8, 2024). 

[viii] Neil Seldman, EPR: The Good, the Bad and the Ugly, Waste Dive (March 22, 2018), https://www.wastedive.com/news/epr-good-bad-ugly/519582/ (last visited July 19, 2024).

[ix] Jared Paben, Ohio Landlords Sue OEMs in Closed Loop Case, E-Scrap News (Aug. 13, 2020), https://resource-recycling.com/e-scrap/2020/08/13/ohio-landlords-sue-oems-in-closed-loop-case/ (last visited July 19, 2024). See also Colin Staub, Nonprofit Director Sentenced for E-Scrap Grant Fraud (Apr. 11, 2024), https://resource-recycling.com/e-scrap/2024/04/11/nonprofit-director-sentenced-for-e-scrap-grant-fraud/; United States Attorney’s Office for the Western District of Washington, Press Release: Owners of Northwest’s Largest Electronics Recycling Firm Plead Guilty to Wire Fraud Conspiracy (Nov. 16, 2018), https://www.justice.gov/usao-wdwa/pr/owners-northwest-s-largest-electronics-recycling-firm-plead-guilty-wire-fraud (last visited July 19, 2024). 

[x] See Cal. Pub. Res. Code § 42053(d)(1); Colo. Rev. Stat. § 25-17-705(4)(i)(IV); Or. Rev. Stat. § 459A.884(4); Me. Rev. Stat. tit. 38, § 2146(6); Minn. Stat. § 115A.1454(3).

[xi] Cal. Pub. Res. Code § 42050(b).

[xii] Alia Enright and Catriona Smith, California Advances Plastic Packaging Law, Env’t L. Inst. (Aug. 23, 2023), https://www.eli.org/vibrant-environment-blog/california-advances-plastic-packaging-law (last visited July 19, 2024). 

[xiii] SB 54 Plastic Pollution Prevention and Packaging Producer Responsibility Act Permanent Regulations, https://calrecycle.ca.gov/Laws/Rulemaking/SB54Regulations/ (last visited June 26, 2024).

[xiv] Covered Material Categories List (Dec. 28, 2023), download at SB 54 Covered Material Categories List, CalRecycle, https://calrecycle.ca.gov/packaging/packaging-epr/cmclist/ (last visited July 19, 2024). The state is required to update this evaluation in 2028, 2030, 2032, and at least every four years thereafter.

[xv] Cal. Pub. Res. Code § 42041(w).

[xvi] Id. § 42060(a)(5)(A).

[xvii] Id. § 42041(e)(1).

[xviii] See id. § 42061.5(b).

[xix] Id. § 42051(b)(2).

[xx] Id. §§ 42050(b)–(c), 42057(a)(1).

[xxi] Id.

[xxii] CAA Homepage, supra note 3.

[xxiii] Cal. Pub. Res. Code § 42051(b)(1).

[xxiv] Producer Responsibility Program, Colo. Dep’t Pub. Health, https://cdphe.colorado.gov/hm/epr-program (last visited July 2, 2024).

[xxv] Solid Waste Proposed Rulemaking and Stakeholder Processes, Colo. Dep’t Pub. Health, https://cdphe.colorado.gov/hm/sw-proposed-rulemakings-stkh-proc (last visited July 2, 2024).

[xxvi] Colorado, Circular Action Alliance, https://circularactionalliance.org/circular-action-alliance-colorado (last visited June 26, 2024) [hereinafter CAA Colorado].

[xxvii] Colo. Rev. Stat. § 25-17-703(30).

[xxviii] Id. § 25-17-713(1)(b); 6 CCR 1007-2 §1.8.2 (2023).

[xxix] Colo. Rev. Stat. §§ 25-17-703(13), (25)(b).

[xxx] Id. § 25-17-703(25)(a)(I).

[xxxi] CAA Colorado, supra note 28; Colo. Rev. Stat. § 25-17-708(2)(a).

[xxxii] Colo. Rev. Stat. § 25-17-705(8)(a).

[xxxiii] Frequently Asked Questions and Answers – Producer Responsibility Program at 8 (Apr. 2024), download at Colorado Dep’t of Pub. Health & Env’t, Producer Responsibility Program, https://cdphe.colorado.gov/hm/epr-program (last visited July 19, 2024) [hereinafter Colorado FAQ]. 

[xxxiv] CAA Colorado, supra note 28; Colorado FAQ, supra note 35 at 4.

[xxxv] Colo. Rev. Stat. § 25-17-708(1).

[xxxvi] Plastic Pollution and Recycling Modernization Act, Oregon Dep’t of Env’t Quality, https://www.oregon.gov/deq/recycling/pages/modernizing-oregons-recycling-system.aspx (last visited June 26, 2024).

[xxxvii] Rulemaking at DEQ—Recycling 2024: Proposed Rule, Oregon Dep’t of Env’t Quality, https://www.oregon.gov/deq/rulemaking/Pages/recycling2024.aspx (last visited June 26, 2024).

[xxxviii] Plastic Pollution and Recycling Modernization Act, Rulemaking 2: OAR 340-090-0870 (June 10, 2024).

[xxxix] Or. Rev. Stat. § 459A.866(1).

[xl] Id. §§ 459A.863(32)(c)–(d), 459A.872(1).

[xli] Id. § 459A.863(6)(a).

[xlii] Id. § 459A.863(18)(a).

[xliii] Plastic Pollution and Recycling Modernization Act, Rulemaking 2: OAR 340-090-0840(2)(a) (June 10, 2024). 

[xliv] Oregon,Circular Action Alliance, https://circularactionalliance.org/circular-action-alliance-oregon (last visited June 26, 2024).

[xlv] Or. Rev. Stat. § 459A.926(2)(a).

[xlvi] Plastic Pollution and Recycling Modernization Act, Rulemaking 2: OAR 340-090-0870 (June 10, 2024). 

[xlvii] Id.

[xlviii] Extended Producer Responsibility Program for Packaging, Me. Dep’t of Env’t Prot., https://www.maine.gov/dep/waste/recycle/epr.html (last visited June 26, 2024).

[xlix] Id.

[l] Me. Rev. Stat. tit. 38, § 2146(4)(A); Chapter 428: Stewardship Program for Packaging at 4 (draft rules proposed Feb. 5, 2024), https://www.maine.gov/dep/bep/2024/03-07-24/Chapter%20428%20Proposed%20Rule%20Draft.pdf. 

[li] Me. Rev. Stat. tit. 38 § 2146(1)(O).

[lii] Id. § 2146(2)(A).

[liii] Id. § 2146(1)(I).

[liv] Id. § 2146(1)(I)(1).

[lv] Id. § 2146(1)(K).

[lvi] Maine, Circular Action Alliance, https://circularactionalliance.org/circular-action-alliance-maine (last visited June 26, 2024). 

[lvii] Chapter 428: Stewardship Program for Packaging at 8, 9 (draft rules proposed Feb. 5, 2024), https://www.maine.gov/dep/bep/2024/03-07-24/Chapter%20428%20Proposed%20Rule%20Draft.pdf. 

[lviii] Mariss Heffernan, By and for Minnesotans: How Packaging EPR Passed, Resource Recycling (June 4, 2024), https://resource-recycling.com/recycling/2024/05/31/by-and-for-minnesotans-how-packaging-epr-passed/. 

[lix] Minn. Stat. § 115A.1441(26)(a)(1).

[lx] Id. § 115A.1441(26)(a)(2).

[lxi] Id. § 115A.1441(13).

[lxii] Id. §§ 115A.1441(10), (53).

[lxiii] Id. §§ 115A.1441(16), (14).

[lxiv] Id. § 115A.1443(1)(a).

[lxv] Id. § 115A.1443(3)(b).

[lxvi] Id. § 115A.1451(7).

[lxvii] Id. § 115A.1443(1).

[lxviii] Id. §§ 115A.1448(1)(a)–(b).