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Momentum at the State Level for Extended Producer Responsibility Legislation

Extended Producer Responsibility (EPR) is an approach to circularity and recycling that makes producers responsible (financially and/or physically) for their end-of-life products and packaging.  Some brands have made EPR part of their business model, but the EPR concept has been more widely applied through legislation.  It has proved effective where applied, “South Korea, for example, saw its recycling rate double in the first 10 years of its EPR program that began in 2003; likewise, Ireland’s recycling rate more than tripled from 2000 to 2017.”[1]   In the United States EPR is common practice for batteries, pharmaceuticals, and mattresses.  In many countries worldwide it is also applied to packaging.  While federal legislation on packaging EPR is unlikely to pass in the United States soon, states have started to consider and pass EPR laws with Maine and Oregon passing bills in the summer of 2021.

Maine’s law, passed July 13, was the first of its kind in America, covering most packaging materials. It has exemptions for low-volume producers, defined as producers that distributed and sold between 1 and 15 tons of packaging material in a calendar year.  An exemption also is in place for beverage containers, as Maine already has a deposit scheme in place for beverage containers.  Producers of packaging materials will be charged fees based on the materials they manufacture and will be nudged towards more recyclable materials by the higher fees levied on materials that are more difficult to recycle.

Oregon followed Maine with a bill establishing an EPR program for food service packaging, plastic and paper packaging.  Packaging manufacturers will be required to join producer responsibility organizations that charge annual membership fees based on the environmental impact of their respective products.  Like Maine’s law, higher fees are placed on packaging materials that are more difficult to recycle, incentivizing the use of more easily recyclable materials and higher recycled content in packaging.  Funding raised from the producers will be distributed to recycling facilities throughout the state.  The law also establishes a collection list to standardize the collection of recyclable materials.

There are a number of other states currently considering EPR bills, including California, Hawaii, Maryland, Massachusetts, New Jersey and New York.  Though California’s EPR bill failed to pass earlier this year, the California state legislature just approved a bill limiting the use of the chasing arrows recycling symbol to plastics that are regularly recycled in practice to cut down on confusion and greenwashing.[2]  A similar bill was introduced and is under consideration in the New York State legislature as well.

At the time of writing the EPR bill under consideration at the federal level is the far-reaching Break Free From Plastics Act, which would introduce EPR nation-wide, establish minimum recycled content standards for beverage containers that would increase over time, ban certain single use plastics, among other measures.  This bill has little chance of passing in its current form.  A national bottle deposit bill (bottle deposit bills are active in only 10 states) is currently being written that would be introduced separately from the Break Free From Plastics Act and is said to have more bipartisan support.  At the moment, the momentum on the reform of recycling practices in America is with state legislatures but it stands to reason that the situation at the federal level may change as industry begins to deal with the regulatory patchwork arising from state-level reforms.



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