How 130+ New U.S. Extended Producer Responsibility Laws Affect Producers
By George Jaikaran, RWDI, Leader — Stewardship & GHG
Waste and waste reduction is an important, if often overlooked, aspect of our current climate crisis. The way we manage products at the end of their life, to how we recycle or reuse packaging materials to create a more circular economy, has environmental impacts on our communities.
This is precisely why extended producer responsibility (EPR) is growing in popularity. EPR is a policy strategy in which producers, such as brand owners and product retailers, are responsible for the management of their products and materials, the disposal and recycling fees, after they have served the necessary function to consumers. Embracing end-of-life product management and encouraging the reuse of resources for as long as possible requires the establishment of extended producer responsibility laws.
EPR laws require producers to pay regulatory fees to account for the cost of recycling and overall handling of post-consumer materials. Here’s how producers are being affected by emerging EPR laws in the United States.
The U.S. Extended Producer Responsibility Law Landscape
EPR is shifting rapidly throughout the United States. Back in 2020, 19 states had more than one EPR program in effect – California alone had 8 product stewardship programs that covered the entire state, alongside local laws.
But what does EPR in the United States look like now? And how do you know which laws apply?
Determining what laws apply can be simplified to the following overarching elements: producer location, where these products are sold, and product category. Producers with operations or sales in more than one state may find that multiple laws affect them.
EPR Laws by State
At the onset of 2023, there were roughly 130 EPR laws across the U.S. – and this is only set to grow in the next few years. Over 75 new laws were added across the U.S. in 2022 alone, and there are currently 33 states with active EPR laws as of late 2023.
Maine and Oregon began drafting EPR packaging laws in 2021, with their laws set to begin in mid-2024 and mid-2025, respectively. Colorado and California followed suit and began drafting similar legislation in 2022.
The new laws, which are still being developed and finalized, will transfer the cost of the packaging waste onto producers. The fee is based on the packaging choices of the product brands they own, are importing, or are being sold. The producer’s location and where their products are sold also affect the fees that must be paid. Specifically, a producer may pay more (or less) in fees in one state than they do in another simply based on the fee rates for product categories in each state.
EPR Laws by Product Category
The type of products produced also matters in determining which laws apply and to what extent. For instance, a mattress manufacturer would not be affected by paint EPR laws, and vice versa. The Product Stewardship Institute (PSI) outlines product categories that can be affected, with 15+ already having laws in the U.S. as of fall 2023.
Fees attached to EPR laws will vary widely based on the product category each law covers. The fees attached to paint EPR laws, for instance, are not the same as those linked to EPR packaging laws.
The EPR packaging laws being developed in Maine, Oregon, and other states will have fees that vary based on the amount of packaging sold, toxicity, as well as if the packaging material is recyclable – thus providing an incentive to use not only less packaging, but recyclable materials as well. Volume is particularly important to note, as across many product categories, the volume of product sold has a strong influence on how much producers must pay.
What EPR Laws Look Like in Action
What is required of producers and other parties under EPR laws varies based on the state and law in question. Paint EPR laws are particularly prominent, with 10 enacted in states throughout the U.S. as of the beginning of 2023, so let’s look at a couple examples of what manufacturers, retailers, and other producers must address as part of these laws.
California’s Architectural Paint Recovery Program
Established in 2010, the Architectural Paint Recovery Act mandates that paint manufacturers must create a program that will collect, transport, and process post-consumer paint in California – and implement the program. This has led to California’s Architectural Paint Recovery Program. The goal is to reduce the environmental impacts of paint disposal in California as well as the costs.
Under this law, paint manufacturers and retailers have several obligations:
- Collect a fee, to be included in the product price, when selling paint program products
- Allow access to records, such as invoices, to prove compliance with the paint law
- Sell paint that is listed as a CalRecycle compliant product and covered under a CalRecycle-approved plan
- Monitor the CalRecycle site for product and manufacturer compliance
- Submit a stewardship plan to CalRecycle (manufacturers)
Paint Product Stewardship Act (Vermont)
The Paint Product Stewardship Act in Vermont was enacted in 2013 to assist in the promotion of proper paint management and recycling. Under this law, paint manufacturers are the ones responsible for collecting and subsequently managing post-consumer architectural paint. This is done through PaintCare, a stewardship organization that is also involved with other paint EPR laws around the country.
Under this Act, manufacturers must submit a plan for a Paint Stewardship Program to Vermont’s Agency of Natural Resources. These plans must meet many criteria, including listing the architectural paint covered as well as participating brands and producers, describing how the paint will be collected and managed using the most economically sound and environmentally friendly manner possible, and details on collection sites. Manufacturer responsibilities include submitting an annual fee to the Agency and carrying out all outlined responsibilities in the plan. Retailers cannot sell paint made by a producer that doesn’t participate in the program. Similar to California, Vermont also has paint fees attached to their program.
Paint EPR laws exist in several other states, including Maine, Colorado, Washington, and New York. These laws, like the two described so far, have fees attached to them based on the quantity of paint.
What are the Benefits of EPR?
Though EPR involves added waste management costs for producers, there are also benefits to EPR to communities and entire economic ecosystems, such as supporting the circular economy and reducing waste production. It also dramatically improves recycling, as laws often mean additional funding for recycling programs, resulting in increased efficiency and higher rates of recycling. The benefit EPR provides to recycling cannot be understated, as recycling also has significant benefits.
Benefits of EPR for Producers
It is vital to note, of course, that EPR also provides benefits specifically to producers. EPR packaging laws, for instance, often mean using less packaging as well as lighter materials, which can reduce purchasing costs as well as EPR fees for producers. Lighter packaging can also lead to reduced shipping and delivery costs as well. Ultimately, the choice of packaging can impact many stages of the product life cycle.
In addition, an increasing number of individuals are looking to make environmentally conscious choices in their daily life. This includes making more conscious consumer choices, such as actively seeking out businesses that are keeping sustainability top of mind. Thus, engaging in EPR and product stewardship can also help meet increasing user demand for sustainable alternatives.
Moving Forward with EPR
As such, the first step is to determine what the applicable laws are. For companies that operate in more than one state, it is vital to examine laws in all states to ensure nothing is missed. The applicable laws determine the next steps, from creating a database of packaging materials used to setting up collection boxes for batteries and paint. Responding to EPR laws also promotes opportunities to make product improvements, such as through producing components (e.g. packaging) that are suitable for multiple uses, are durable and repairable, and contain recycled materials.
Navigating the expanding EPR landscape can be challenging – but the resulting benefits to communities and producers alike make streamlining the process well worth it.