Nine states are looking to enact extended producer responsibility packaging, and Hawai’i chose to put a “pre-EPR” bill into play. | Paul-Brady-Photography/Shutterstock
Extended producer responsibility for paper and packaging is once again a hot topic in statehouses across the country.
At least nine states are looking to enact extended producer responsibility (EPR) or stewardship plans for packaging, including Illinois, Massachusetts, Minnesota, New Jersey, New Hampshire, New York, Rhode Island, Tennessee and Washington.
In a more exploratory role, Hawai’i has a bill in play that directs its state Department of Health to conduct a statewide needs assessment “to inform the future establishment of an extended producer responsibility program for packaging waste.”
Scott Cassel, CEO of the Product Stewardship Institute (PSI), said in addition to the filed bills, PSI is working with several other states that don’t plan to run bills this session, but are planning to in the future.
Dylan de Thomas, vice president of public policy and government affairs for The Recycling Partnership, said he prefers to offer a window of time when predicting bill passage, rather than identifying a specific year.
“I’m super confident that we’re going to see three to six bills pass in the next one to three years,” he said. “I feel that very strongly. It’s just hard to predict which session they’re going to pass.”
For example, short legislative sessions in Washington and Minnesota this year made it a challenge to move any bills, de Thomas added, even though both those states have strong EPR bills and lots of support.
Cassel said he was “a little surprised” that no full EPR bills passed last year, but Maryland and Illinois did pass pre-EPR bills.
He attributed last year’s lack of full programs passing to the energy put into the implementation of the bills that passed in 2021 in Maine and Oregon and in 2022 in California and Colorado.
“It’s a little bit like a giant snake swallowing a big meal of four EPR laws,” he said. “They’re digesting a little bit. It’s taken some time for all parties – the governments and industry – to move ahead.”
De Thomas echoed that while no full bills passed last year, “we did see meaningful dialogue across the country” and those productive talks have continued this year.
The slow down in pace “is a good thing,” Cassel added, as “it’s giving people time to work through some really important issues.”
“What I’m seeing is there’s more comfort in the stakeholders working together,” he said. PSI is facilitating the advisory council in Colorado, and Cassel said he’s seen “a very healthy discussion.”
Hawai’i
Legislators in Hawai’i are again working to advance EPR for packaging on the islands. This session’s SB 2368 states that “there is a need to engage and consult with existing recycling system stakeholders to better understand the impact that such legislation would have on the existing waste and recycling infrastructure.”
The bill would allocate funds to the Department of Health to carry out a statewide needs assessment, in collaboration with counties, recycling service providers, packaging and single-use product producers, retailers, haulers and organizations and community groups involved with material management and reduction.
Cassel said PSI has been working with legislators in Hawai’i and the decision to do a needs assessment bill was based on what the lawmakers felt was possible this session.
Specifically, the needs assessment would look at the “resources needed to reduce each respective county’s packaging waste” and carry out characterization studies, including baseline disposal levels and baseline existing collection infrastructure, processing and materials recovery facility infrastructure, end markets, education, contamination levels and equity.
The report would also touch on the potential economic impact of EPR, whether an EPR program should “address a broader waste stream than just packaging waste,” and improvements needed in services and MRF technology.
If the bill is signed into law, the Department of Health will have a deadline of Dec. 31, 2024 to complete and submit the needs assessment, including if they recommend legislation.
The bill is currently in the Senate Ways and Means Committee.
Illinois
SB 3795 would create EPR for packaging, though the governor signed an EPR study bill last year.
The newly introduced bill has a series of exemptions for products, eco-modulation fees, requirements for responsible end markets, an advisory council, requirements for commingled facilities that received the covered materials, a contamination management fee, a processor commodity risk fee and a truth in labeling and truth in composting task force.
It also sets a statewide recycling rate goal for plastic packaging of at least 25% by 2028, 50% by 2040 and 70% by 2050.
The bill has been introduced and is waiting to move into committee.
Massachusetts
There are multiple EPR for packaging bills in play in Massachusetts, including HB 4263, H833 and SB S570.
HB 4263 would set up EPR for packaging and paint. It calls for a needs assessment, an advisory committee, eco-modulation fees, post-consumer recycled content mandates and reduction of toxic substances.
The combined reduction and recycling rate set in HB 4263 is 65% by weight by July 1, 2027;
80% by July 1, 2031, and 100% by July 1, 2035.
The minimum post-consumer recycled material content rate is not to be less than 10% of all material in each covered material category, by weight, under that bill. HB 4263 is currently in the House Ways and Means Committee.
SB S570 would implement a bag ban, a plastic utensil ban, and other various restrictions and recycling requirements. It also calls for the creation of a special legislative commission for the purpose of recommending an EPR plan, due by Dec. 2, 2024. The bill is in the Senate Ways and Means Committee.
H833 would also create a commission to study EPR for leftover paint, electronics, pesticides, household batteries, fluorescent lamps, phone books, carpet, medical sharps, consumer packaging and printed materials, pharmaceuticals, tires and mercury thermostats. The report would be due in one year. H833 is currently in the Joint Environment and Natural Resources Committee.
Minnesota
HB 3577 in Minnesota includes elements that are becoming hallmarks of U.S. EPR for packaging and paper: A needs assessment, eco-modulation fees to encourage designing for recyclability, source reduction and recycled content mandates.
It also calls for a Producer Responsibility Advisory Board. The needs assessment includes a section on toxic substances.
The targets in the bill are that 65% of covered materials by weight sold into the state must be recycled or composted by 2033, and 10% of the number of units of packaging sold into the state must be returned to an established reuse system. In addition, the weight of covered materials must be source-reduced by 15%, with a baseline set by the needs assessment, and all covered materials must have at least 10% percent post-consumer recycled content by 2033.
By 2038, those targets increase to 75% recycled or composted; 20% returned to a reuse system; 25% source reduction, and 30% post-consumer content.
HB 3577 also notes that if a bottle deposit return system is enacted, it will be harmonized with the EPR bill.
The bill is currently in the Commerce Finance and Policy Committee.
New Hampshire
New Hampshire’s proposed EPR bill, HB 1630, would set up a producer responsibility organization (PRO) to manage the program and calls for a statewide packaging reduction, reuse and recycling needs assessment.
The bill calls for reduction and recycling targets for each individual producer. On the reduction side, producers are required to reduce their packaging by at least 5% two years after registering with the PRO, at least 20% five years after registering and at least 50% 10 years after registering.
In terms of recycling, the targets are at least 30% recycled five years after the bill was enacted; at least 50% after eight years and at least 70% within 12 years.
However, the bill was voted “inexpedient to legislate” on Feb. 22 by the House and instead recommended for an interim study.
Cassel of PSI noted that New Hampshire’s bill was based more on the environmental group models versus government and industry models, and “those usually have more difficulty passing.”
New York
S 4246, the “packaging reduction and recycling infrastructure act,” would require producers to register with a PRO and develop a packaging reduction and recycling plan. It shares some language with New Hampshire’s bill.
The bill includes packaging material that is distributed into the state via internet transactions as well as single-use plastic products “that frequent the residential waste stream or are plastic products that have the effect of disrupting recycling processes, including, but not limited to, single-use plastic items such as straws, utensils, cups, plates and plastic bags.”
In addition, the draft text specifies that there will be only one PRO in the state for at least a decade. It also lays out the outline of an advisory council that will include 13 members and calls for a needs assessment.
Eco-modulation factors would include PCR content, reduction and design for recyclability. There are also restrictions around toxic substances.
Reduction targets are 10% by weight in the first three years after a producer first registers with the PRO, 20% after five years, 30% after eight years, 40% after 10 years and 50% after 12 years. The reductions will be measured against the total amount of packaging the producer used in the first year the producer registered.
For recycled content standards, the targets are 35% for glass, 40% for paper bags, and 20% for plastic trash bags after two years.
For non-plastic packaging, in 2028 at least 35% of the material used by a producer needs to be reused or recycled with a minimum of 5% reused. In 2035 that increases to 50% reused or recycled with a minimum of 10% reused, and in 2050 it caps a minimum of 75% material reused or recycled with a minimum of 20% reused.
For plastic packaging, those percentages are 25% recycled or reused in 2028, 50% in 2035, and 75% in 2050.
Casell said in New York, there “seems to be some greater movement toward a consensus from the environmental and government stakeholders.”
“There seems to be more of an understanding of what may be needed to pass a bill that comes from their own lessons from the past year and the other states,” he added.
The bill is currently with the Senate Environmental Conservation Committee.
New Jersey
New Jersey’s S 208 would require producers to “adopt and implement packaging product stewardship plans,” either individually or collectively.
The bill covers primary packaging, secondary packaging “that is used to group other products for multi unit sale or is intended to brand or display another product” and tertiary packaging used for transportation and distribution. It also includes service packaging, such as carry-out bags, bulk goods bags, take-out bags, home delivery foodservice packaging and prescription bottles and beverage containers.
The bill also encourages producers to increase the amount of post-consumer content in packaging, reduce overall packaging use and “prioritize and promote” reuse and recycling and “otherwise minimize public sector involvement in the life-cycle management of packaging waste.”
The bill also tasks the PRO with setting performance goals that all single-use packaging products must be composed of at least 75% post-consumer content by 2027, that all single-use packaging products must be readily recyclable or compostable by 2030 and that all single-use plastic packaging must be “reduced to the maximum extent practicable,” or by at least 25%, by 2030.
The bill, which is a carry-over from past legislative sessions, is currently in the Senate Environment and Energy Committee.
Rhode Island
Rhode Island’s central landfill is projected to reach capacity by 2034, and single-use packaging makes up about 16% of the material buried in the landfill each year, H7023 noted, which is why the bill would create an EPR program to manage packaging materials.
The bill calls for a needs assessment, eco-modulation fees, investment in reuse and refill systems and phasing out of toxic substances, and it sets recycling and reduction targets.
For reduction, the goals are a 10% reduction, by weight, after two years; 20% after four years; 30% after six years; 40% after eight years and 50% after a decade, measured against the baseline set in the needs assessment.
Under the bill, producers would be required to use packaging made of a material that meets certain recycling rates. Those rates are at least 30% within five years, at least 50% within eight years and at least 70% within 12 years.
The bill is currently in the House Environment and Natural Resources Committee.
Tennessee
The goals of Tennessee’s SB 573 are to recover “valuable materials that would otherwise be lost to landfills, litter, and incineration,” provide financial stability to local recycling systems, invest in recycling infrastructure and jobs, and encourage producers to reduce and reuse materials, the bill stated.
The bill calls for a producer responsibility program advisory board, a needs assessment, eco-modulation fees, reducing packaging and “chemicals of high concern,” and supporting reuse systems.
It directs the PRO to set performance goals for each covered material type at five-, 10-, and 15-year rolling intervals.
“The performance goals must be informed by PRO experience and knowledge and include post-consumer recycled content goals, recyclability and recycling rate goals, reuse goals, packaging reduction goals, contamination reduction rate goals and any other goals required by the advisory board or the department,” the bill stated.
SB 573 is currently in the Senate Energy, Agriculture and Natural Resources Committee.
Washington
Washington again tried, and failed, to pass a multi-part bill that would enact EPR for packaging, a deposit return system, truth in labeling, recycled content requirements, restrictions on toxic additives, home composting standards and marine litter reduction.
Washington state alternates between 60-day legislative sessions and 105-day sessions, and this year is a short session, making it more difficult to pass complex bills.
Cassel said despite the short session, supporters were able to build on past years’ work with HB 1131 and they “did feel there was more movement this year.”
“They feel they learned some lessons,” he said. “It moved forward and there was a lot of satisfaction with getting it moving further than it’s been.”
The draft bill called for a needs assessment and rates study and the creation of several advisory councils, including a PRO advisory council and a consumer convenience advisory council.
Under HB 1131, the PRO would have been responsible for suggesting performance rates for covered products by Jan. 1, 2025. The bill sets out different categories of overall recycling rates, reuse rates, recycling rates by material and reduction rates.
The post consumer recycled content requirements had rolling phased-in deadlines from 2023 through 2036, depending on the type of material and container shape. Target levels for most materials and containers were set at 15%, 25% and 50%.
De Thomas said the Washington bill is so strong that other states are looking to it as a model.
“I would love to give Representative Liz Berry some credit,” he said. “The internal work she’s done with stakeholders, even though two years in a row the bill did not end up passing, the reverberation of the hard work behind that bill are felt all around the county.”
For example, Washington’s bill has been mentioned in Minnesota, he added, and the Minnesota definition of a “producer” is very similar to Washington’s.
Future momentum
Looking to the future, Cassel said PSI has been working with interested legislators in Connecticut and Vermont, and he expects bills in the near future. There’s also interest in Kentucky, he said.
“I do think that there is a lot of focus on the implementation right now,” he said. “We’re learning an awful lot of things. We are going to be moving into the program plan in Colorado, working on eco-modulated fees – that mysterious box. That will be looked into and people will have a better idea of what’s involved.”
While the first four EPR bills to pass were all “vastly different,” de Thomas said bills on the table now show a little more harmonization. There are common aspects, such as some measure of source reduction, reuse and refill, he said, and “the laws themselves are getting more detailed.”
“We, as a group, the people who are for, opposed, neutral, anywhere in between on these laws, are learning and getting better and much more nuanced,” he said.
De Thomas added that he also expects to see an EPR bill in Pennsylvania soon.
However, it’s not a slam-dunk for EPR for packaging bills, Cassel said. There’s still “cross currents” of producer resistance and political pressures.
The states most likely to pass EPR for packaging are those that already have EPR for another kind of material on the books, he added.
It makes the structure more understandable for both legislators and the public, he said, “to be able to point to the paint industry that is supportive, and the battery industry and mattress industry, who are, to some point, supporting these laws, and see the cost savings and environmental savings.”
It allows advocates to say, “packaging you can do this,” he added.
There’s some interest at the federal level, Cassel said, and it’s “good to hear a little echo” at that level as there’s value in having high-level conversations about elements of EPR bills that could be harmonized, such as PCR content or labeling.
“We need to look for areas where we’re able to have those discussions,” he said.
However, any national law that would supersede state laws “would be very challenging,” de Thomas added. He noted that harmonization efforts between states are more likely.
“We would love to see a national EPR law and be able to have that level of impact that we know EPR laws to have, and I would hope at some point there would be a tipping point with all the state laws passing,” de Thomas said. “But whether or not that happens is another question.”
In any case, de Thomas said he thinks “we are really looking to a future that we are going to see more of these bills be introduced and better, leaner bills be passed, and I’m really excited to see that.”