Extended producer responsibility (EPR) programs are transforming the regulatory landscape across the United States. State governments are shifting the onus of end-of-life product management from consumers and local governments to the companies that produce, distribute, or sell certain items. As these programs expand, businesses across multiple sectors – including food and beverage, consumer goods, apparel, and logistics – need to evaluate their options to ensure compliance as part of the broader move toward circular economies. These programs are being rapidly adopted, and with more states expected to follow, they will have far-reaching impacts across the supply chain.
What Is EPR?
EPR or product stewardship programs aim to encourage product design changes that minimize environmental impacts, reduce landfill waste, promote recycling, and support recycling and materials management goals. Over the past decade, states have established EPR programs for products such as batteries, paints, pharmaceuticals, and, in recent years, packaging. EPR programs for packaging require producers, such as brand owners, licensees, manufacturers, and in some cases franchisors to take responsibility for the waste generated by their covered products such as single-use packaging, food serviceware, and paper products. Five states – California, Colorado, Maine, Minnesota, and Oregon – have enacted EPR legislation for packaging and other covered products, while many other states have introduced such legislation.
What Products Are Covered, Who Is Responsible?
One of the most challenging aspects of EPR programs is the variability in definitions and coverage among states. Understanding the scope of products and the specific business entities along the supply chain that are subject to these laws is essential.
What is a covered product?
EPR laws typically target a broad spectrum of products, and the new laws are focused on paper products (e.g., magazines, catalogs, and office paper); plastics (e.g., single-use utensils, plastic-coated food packaging, and food service trays); and packaging materials (e.g., protective bags, boxes, and bubble wrap).
Who is a producer?
Definitions vary by state but often include brand owners, importers, distributors, packaging manufacturers, and retailers. Some states, including Oregon, have enacted regulations aimed at upstream producers (such as manufacturers, brand licensees, and importers), while other states have focused more on brand owners and public-facing companies.
What exemptions exist?
Many states include exemptions based on annual revenue, volume of covered products sold in the state, or geographical limitations. Small businesses or low-volume producers might be exempt or subject to reduced fees, easing the compliance burden on emerging companies.
What Do These Laws Require?
EPR laws impose various obligations structured to shift the cost of waste to producers. Companies that produce, distribute, or sell “covered products” – items that fall within the law’s ambit – may be responsible for the following measures:
- Joining a Producer Responsibility Organization. Companies must register with state-approved producer responsibility organizations (PROs), which manage the end-of-life processing of their products and assess fees based on the volume and type of covered materials distributed within the state. Formation and management of PROs vary by state.
- Reduction Targets. States such as California require producers to reduce or eliminate the amount of nonrecyclable or noncompostable materials they use by specific deadlines. Companies may need to reformulate products or packaging to meet these benchmarks. Other laws may be implicated in this as well, such as post-consumer recycled laws in California, Washington, New Jersey, and Maine, which mandate the amount of recycled plastic that can be used in certain products.
- Reporting and Labeling. Specific labeling may also be required under these laws. For example, Washington requires that producers label packages that contain plastic trash bags with certain information when selling or distributing them within the state. Companies may also need to report packaging data to remain in compliance with these new laws.
- Stakeholder Engagement. In some jurisdictions, companies must work with local governments, recyclers, and other industry stakeholders regarding recycling infrastructure and public education initiatives.
Why Should Your Company Care?
Companies from all levels of the supply chain, from brand owners and manufacturers to distributors and importers, may be affected by the wide-reaching EPR packaging laws. Due to the patchwork of state requirements, companies’ obligations may vary by state and supply stream (e.g., direct-to-consumer or business-to-business). For example, while the obligated producer for certain packaging used to ship products via either e-commerce direct-to-consumer or business-to-business in Oregon could be the importer, in Minnesota it could be the brand owner within the United States, whereas in Colorado the U.S. manufacturer would be the obligated producer but only for the direct-to-consumer stream.
Penalties for noncompliance vary by state but range from $5,000 to $50,000 per day/violation, and for subsequent violations can go up to $100,000 per day/violation. In addition, some states such as Oregon can take action to prohibit producers from selling or distributing covered products if they do not comply with the program requirements.
What’s Next?
Several state programs have already been enacted, with compliance deadlines on the horizon. While some requirements will not take effect until 2026, 2027, or later, other states’ implementation dates are rapidly approaching.
Notably, under Oregon’s EPR program, producers must register with a PRO and submit data about their 2024 distribution in the state by March 31, 2025. Compliance with these requirements is necessary to continue selling or distributing covered products in Oregon after July 1, 2025.
EPR programs may be coming to other states as well. To date in 2025, eight states have introduced legislation on EPR for packaging.
Given these rapid developments, it is critical for companies to stay informed of the changing legislative and regulatory landscape and evaluate the applicability of the EPR laws to their businesses. Alston & Bird is monitoring legislative changes, regulatory updates, and other opportunities to help shape these programs as they develop. We stand ready to assist with analyzing how EPR programs may or may not apply to your company.
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If you have any questions, or would like additional information, please contact one of the attorneys on our Environment, Land Use & Natural Resources team or one of the attorneys on our Food, Beverage & Agribusiness team.