So far, four states have passed packaging EPR legislation (Maine, Oregon, California, and Colorado), and eleven more have EPR bills proposed for 2023. These states are still early stages of their implementation and rulemaking process. Whether and how eCommerce packaging will be treated under EPR remains unclear in all four states.

Additionally, the question of which entity is considered the “producer” (particularly when brands and retailers do not have a presence in the state itself) remains unclear. While the impact of EPR is still at least a year from being felt, other laws in California have already resulted in a handful of studies, lawsuits, and recycling changes that are starting to shift the dialogue in the state (and nationwide), especially as it relates to plastic bags.

The packaging requirements set forth by officials often protect human health or support specific ecological goals such as maximizing recyclability and minimizing plastic pollution. This ever-changing landscape of packaging legislation and requirements can be challenging. Things evolve quickly, and brands must interpret how the specific complicated language within bills applies to their packaging and operations. This is particularly complicated for online retailers that ship across state lines. Also, there are still major outstanding questions about how emerging holistic legislation like Extended Producer Responsibility will take shape.

This guide is a comprehensive overview of critical sustainable packaging requirements and legislation by state and retailer to simplify this complex landscape of information.

Violating explicit packaging legislation can leave you with fines or citations. Violating retailer packaging requirements can lead to penalties or result in these retailers deciding not to continue selling your products.

Going against sustainability recommendations by retailers or the Federal Trade Commission can make your brand less appealing and lead consumers and advocacy groups to take action by publicly holding brands accountable or through lawsuits.

When you understand how current packaging requirements affect your business, you can prevent problems before they begin and avoid unnecessary headaches.

Simply adhering to legislation typically does not go far enough regarding sustainability. When it exists, you need to follow it. But recognize that it is generally a baseline starting point, and these laws and requirements rarely push brands to make their packaging as circular and eco-friendly as possible.

For example, states or municipalities might ban single-use plastic retail bags. An eco-conscious store may inadvertently move their entire packaging line to 50% recycled paper bags instead of thinking they have successfully satisfied these new requirements and eliminated single-use plastic. However, the packaging they moved to is likely to be significantly higher in carbon footprint and - if not sourced thoughtfully - could directly contribute to deforestation. A better strategy would be to discourage single-use bags altogether, provide (for sale) reusable totes to anyone who wants one, and offer up (for a small fee) a 100% recycled paper shopping bag when the customer needs one.

Rather than waiting for laws at the national level, local leaders and legislators are working to make a change in their communities. As a result, over the past several years, more cities and states have started to take sustainability standards into their own hands.

This is a hugely positive step. In general, there are two ways changes happen: bottom-up and top-down. Top-down change starts with the “people in charge.” Bottom-up change begins at ground level and goes up the chain of command.

When looking at the United States, waiting for top-down change at a national level can take time. There are more considerations and hurdles whenever new laws come onto the stage. On the other hand, bottom-up change can happen more quickly. At a city or state level, there’s a smaller population impacted and fewer decision-makers for laws to go through. This approach also lets local leaders determine what will be feasible and effective in their area.

As this bottom-up change spreads, the ripple effect takes hold. One state passes a ban on single-use plastic bags and decreases plastic waste. Another state sees this and decides to follow suit. Then another. The change moves outward and soon becomes a new normal.

As states, cities, and even retailers establish their targets and requirements for sustainability and packaging, these will be adopted by more and more brands, expected by more and more consumers, and allow for the right national legislation to take hold.

Most packaging legislation falls into three main city, state, and national categories. Here are the most common types of packaging laws.

Note: Retailers typically take a different approach, with some “requirements” and some “recommendations.” We’ll cover this in more detail later on.

This legislation is the strictest type. In these circumstances, retailers are banned from using or distributing some materials. These bans are often passed at the city or state level.

The most frequently banned materials or packaging types include:

• PVC (Polyvinyl Chloride)
• Polystyrene or Styrofoam
• Single-use plastic bags
• Single-use plastic straws
• Single-use utensils

When outright bans are introduced, most areas gradually phase out the banned material. However, vendors and retailers may face fines or other penalties for not complying once the ban is in effect.

Rather than outright banning materials, some areas use fees to limit use.

One typical example is charging a fee for single-use bags at a grocery store.

This structure allows some use of the restricted material but makes it less appealing to stores or consumers, depending on who is asked to absorb the fee. The hope is that more consumers and vendors will use a more sustainable option instead.

EPR is the “Extended Product Responsibility” Legislation that puts more responsibility to handle product life cycles on manufacturers and producers. EPR Legislation aims to reduce the negative impact of a product and its packaging on the environment.

Most EPR Legislation gives producers financial responsibility for the end-of-life of their products. In this case, many EPR programs ask or expect producers to join a producer responsibility organization (PRO). The PRO generally collects fees from members to cover program costs and product end-of-life management.

Other EPR Legislation requires producers to directly provide services that take care of end-of-life needs after product use. This may include take-back programs, recycling centers, or other processing methods. Some EPR laws include a combination of financial and operational responsibility.

Areas like Canada and the European Union already have established EPR regulations. However, EPR is also starting to gain steam in the United States. Maine, California, Oregon, and Colorado have all passed EPR regulations. Other states are in the process of introducing them, and we expect this trend to continue.

There are very few explicit laws regarding the labeling of packaging. Any conscious consumer has experienced this firsthand when we see recycling labels on things like hard-to-recycle coffee cups (which are only recyclable in a small fraction of municipalities nationwide) or terms like biodegradable used on a variety of different packaging items.

However, a few exciting trends are emerging to help create consistency around labeling, particularly regarding packaging end-of-life.

Extended Producer Responsibility

Many EPR bills (including the four that have passed) have a component related to truth in labeling. These are focused on the following:

Creating far more clarity and honesty in compostable and biodegradable packaging: The compostable packaging industry has wreaked havoc on our nation’s industrial composting facilities and has formed profound misperceptions among consumers about what the ideal end-of-life situation for packaging is (and what constitutes true compostability). Truth in labeling aims to set requirements about what kind of packaging can be labeled as “compostable” (and the standards are likely to include requirements about what kind of supporting copy is used to clarify any compostable icons). These will likely also create guidelines on when and how the term biodegradable can be used and will probably ban the use of “landfill biodegradability.”

Cleaning up the highly abused use of chasing arrows in plastics: When the fossil fuel industry invented the chasing arrows icons, it did so to create a false sense of security among consumers that all packaging with this symbol is recyclable. Only a few types of plastic packaging are readily recyclable - polyethylene, PET, and (in some states) polypropylene. While these three materials are pretty common (and it is great that we can currently recycle them so successfully), there are dozens of other types of plastics and packaging made with blends of different types of plastics. All these materials fall into a hard-to-recycle plastic category but typically still showcase the confusing chasing arrows sign with an equally confusing and misunderstood number.

The four states that have passed EPR legislation have yet to solidify their guidelines and end-of-life labeling requirements. However, because of how essential truthful end-of-life guidance is to achieving the recycling goals these laws have set, these will likely be developed and clarified by working groups fairly quickly in implementing these new laws.

Federal Trade Commission continues to revamp its Green Labeling Guides

The Federal Trade Commission’s Green Guides are designed to help marketers avoid making environmental claims that mislead consumers. The Green Guides were first issued in 1992 and were revised in 1996, 1998, and 2012. The guidance they provide includes:

1. General principles that apply to all environmental marketing claims.
2. How consumers are likely to interpret particular claims and how marketers can substantiate these claims.
3. How marketers can qualify their claims to avoid deceiving consumers.

The most recent 2012 release of the FTC Green Guides contains an excellent summary for brands about when and how to use terms like recyclable, biodegradable, and “made from recycled content.” While the FTC guidelines are general and (by necessity) somewhat vague, they are helpful to understand and accommodate right away.

For example, only label your packaging as recyclable if 60%+ US households can recycle it. If this is not the case, then clarifying language related to the limited recycling access available and how to find the closed drop-off location should be used. Additionally, the Green Guides explain that only material recaptured after consumer use (post-consumer waste) or from a manufacturing process (pre-consumer waste) can be deemed recycled content. Scraps generated on a manufacturing line reused on that same line cannot be considered recycled content. This easy-to-review reference guide provides some basic protocols to follow.

The FTC is revamping its Green Guides and is accepting comments from the public as part of this revision process as of February 2023.

Please note that this resource is not intended to cover Proposition 65 or Suffocation Warning laws; however, these are important for brands to understand.

These are five of the biggest trends we found across the board for retailers’ packaging and sustainability requirements.

One of the most exciting things about sustainable packaging requirements is also one of the biggest challenges.

It’s constantly changing.

This is exciting because it means more states, cities, brands, and retailers are progressing toward an environmentally conscious approach. But it also challenges you as you try to stay ahead of the curve and comply with the necessary guidelines and laws.

Based on what we see on the landscape today, we encourage all brands to adhere to a handful of guidelines, which will best position them for success as they navigate packaging laws, requirements, and recommendations.

Depending on your state, these action steps may be required. But even if they aren’t, putting these strategies in motion today can position you successfully long-term.

We’re committed to helping you understand and apply current information about sustainable packaging requirements and legislation. Navigating complex sustainability questions is the best part of our job.