Guide to EPR and Sustainable Packaging Legislation
GUIDE TO EPR AND SUSTAINABLE PACKAGING LEGISLATION
- Latest EPR and Legislation Updates
- Guide Overview
- Common State and Local Legislations Around Packaging
- A Deeper Dive into Extended Producer Responsibility (EPR)
- Packaging Labeling Requirements and Guidelines
- How Packaging Requirements and Laws Affect Online Sellers
- Trends in State-by-State Packaging Requirements and Sustainability Legislation
- Retailer Packaging and Sustainability Guidelines
- Recommended Action Steps For All Brands
- Recap of Requirements and Legislation
What You Need To Know Right Now
This guide has detailed information about packaging legislation nationwide.
Here we’ll highlight the most recent updates that eCommerce brands need to know.
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.
Oregon is making swift progress in implementing its Recycling Modernization Act (RMA). The Department of Environmental Quality (DEQ) is undertaking rulemaking to clarify and implement the RMA. The first rulemaking began in 2022 to clarify requirements under the RMA for packaging, paper products, and food-service ware producers and to support and expand recycling services in Oregon for their products. A Rulemaking Advisory Committee was established to review technical issues and fiscal impacts of the rules and has met six times between July 2022 and April 2023. DEQ plans to begin a second rulemaking later in 2023 covering additional topics, with that second rulemaking process carrying into 2024.
Later this year, the DEQ will formally propose rules to the Oregon Environmental Quality Commission (EQC) that identify recyclability acceptance lists and collection targets/standards for materials.
Additionally, the Oregon Recycling System Advisory Council (ORSAC) has been established and has met six times between March 2022 and April 2023 to review the DEQ’s material acceptance lists, PRO obligations, local government compensation, responsible end markets, and other rules related to the RMA legislation. Rulemaking related to eCommerce packaging has yet to be tackled, and brand participation/payment into the PRO is still about two years away.
Colorado hired its producer responsibility organization (PRO) in April 2023 - Circular Action Alliance (led by large CPG companies, including General Mills, Proctor & Gamble, Unilever, and the Coca-Cola company). CAA has a deadline of Jan. 31, 2024, to commission a recycling needs assessment. There is no clarity yet on if and how the packaging of eCommerce brands will be factored in. Brand participation/payment into the PRO is still about two years away.
Gradual progress is being made in implementing California’s producer responsibility law (SB 54). Applications for the Advisory Board were due in early April 2023 - the first step in implementing SB 54 (CA’s producer responsibility law). This Advisory Board will work with CalRecycle and the PRO to review the needs assessment, program plans, and recycling rates and to offer other technical assistance. CalRecycle is likely to publish a list of recyclable and compostable materials in 2024, and regulations implementing the new law are set to be completed in 2025. There is no clarity yet on if and how the packaging of eCommerce brands will be factored in. AB 2026, a proposed bill requiring eCommerce brands shipping into California to reduce the weight of their plastic packaging, is no longer active. Brand participation/payment into the PRO is still about 2-4 years away.
While EPR implementation is still in the early stages, other laws in California have had a major impact on plastic and paper grocery bags this year, and the influence is being felt well beyond single-use retail bags. SB 270 bans all single-use plastic retail bags, requires that paper bags and reusable bags are sold for at least $0.10 / bag, and requires that reusable bags are certified by a third party. SB 343 restricts recyclability claims by narrowing the universe of "consumer goods" and packaging considered "recyclable,” requiring that the chasing arrows symbol can only be used if the packaging truly can be recycled by the majority of Californians. These laws led some retailers to use thick plastic bags that qualified as “reusable” and “recyclable” under SB 270. In response, California’s Attorney General Rob Bonta has asked six manufacturers of plastic bags to prove their bags are recyclable and motivated The Last Beach Cleanup to file lawsuits against several retailers. A GreenBlue study published late in 2022 found that 78% of California’s population lives within 3 miles of a film drop-off bin and that 85-90% of the reclaimed film is sold to end markets - largely to be converted into composite lumber.
Despite the findings of this study, the California landscape is becoming increasingly restrictive of plastic film and the use of any recyclability claims on this material. The Association of Plastics Recyclers and How2Recycle also seem to be responding by restricting and changing how they evaluate plastic film material. The unfortunate consequence is that the recycling rate and infrastructure for film and other materials that can be recycled and have ready markets are likely to plummet in the state. A hopeful upside is that products and packaging must be designed with more attention to true circularity.
Implementing Maine’s law will require extensive rulemaking by the Maine Board of Environmental Protection (BEP) that must be kicked off by the end of 2023. To support this rulemaking, Maine’s Department of Environmental Protection (DEP) has begun a stakeholder engagement process that will conclude in December 2023. Topics covered include producer exemptions, payments, reporting, program goals, readily-recyclable criteria, municipal reimbursements, education, investment, and audits, and the process includes at least two meetings on each topic. Draft rules will be published for public comments before BEP adoption.
The BEP is anticipated to adopt technical rules and provisionally adopt major substantive rules by mid-2024, with the final adoption of substantive rules in mid-2025. There is no clarity yet on if and how the packaging of eCommerce brands will be factored in. Brand participation/payment into the PRO is still about 2-4 years away.
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.
Comprehensive List of Guidelines, Legislation and Bans
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.
Common State and Local Legislations Around Packaging
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.
Outright Bans On Certain Materials or Packaging Types
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.
Fees or Penalties for Restricted Materials and Packaging
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.
Extended Producer Responsibility Legislation
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.
A Deeper Dive into EPR
What is Extended Producer Responsibility?
EPR legislation is designed to place more of the financial and operational burden of the treatment and disposal of certain consumer products on the producers, manufacturers, and retailers that sell and profit from those items. According to EcoCycle and PSI, there are currently 131 EPR policies across 33 states, a tremendous increase from fewer than ten policies in 2001.
These policies have historically targeted hard-to-recycle products, including electronics, batteries, paint, mattresses, carpet, fluorescent lighting, and pharmaceuticals.
There is no standard or single way to structure an EPR law. But, in general, the EPR typically mandates that producers or retailers of relevant products pay into a Producer Responsibility Organization (a PRO) that helps manage that item’s receiving and recycling process. This cost is generally then embedded into the pricing of that product in some way.
A classic example of EPR is paint. Previously, unused paint was difficult and expensive to recycle, causing most people to landfill it. This led many states, including our home state of Colorado, to start EPR programs that mandate paint producers to collect and process unused paint. On July 1, 2015, Colorado’s Architectural Paint Stewardship Act allowed for the establishment of PaintCare, a non-profit organization (a PRO), to collect unused paint in Colorado, generally by working with participating retailers as drop-off locations. Unused latex paint is either reused or recycled into new paint. Unused oil-based paint can be used as a fuel source. Since the passing of this act in 2015, paint in Colorado has included a $0.75 per gallon EPR fee that pays for PaintCare’s services.
EPR has been around for a while. Recently, the concept has been gaining a lot of exposure because states (and even our federal government) are now looking to EPR to help address waste created by Product Packaging and Paper Products (PPP).
Today, four states - Oregon, Maine, Colorado, and California - have passed EPR bills related to packaging. While the specifics of how these EPR bills are structured vary greatly, the general approach is similar.
Brands that sell packaged items (and, in some cases, the producers and printers of that packaging) would be required to join a collective producer responsibility organization (a PRO). In some states, there will be a single PRO (selected through an RFP process). Other states will allow for a myriad of PROs to be in operation. Brands then pay into the PRO based on how much packaging they utilize and the ecological characteristics of their packaging. PROs then directly fund MRF equipment investments, recycling education efforts, infrastructure investments to support remanufacturing recycled content, litter clean-up initiatives, etc. Some states have accompanied their EPR legislation with specific recycling and source material reduction targets (with PROs liable to hefty fines if they aren’t met). Others take an approach known as eco-modulation, with producer fees decreasing as eco-characteristics of their packaging increase.
Who is the “Producer”?
There is no standard definition of “the producer” in EPR legislation.
In general, the scope of EPR legislation in the US covers packaging (and printed papers, food service ware, etc.) that leaves with the consumer from the point of sale or is received by the consumer via e-commerce channels. Like existing programs, the producer (or responsible party) is the brand owner.
This can get complicated, so each state has (or will have) a clear decision-making map to help companies understand when and why they are a responsible party.
For example, in a physical retail environment, if a product is being sold in packaging under the manufacturer’s or a licensed brand, the brand is the producer. The product’s manufacturer is responsible if it is sold in packaging without brand identification. However, when it comes to the actual shopping bag given to the consumer, the responsible party is the entity operating the physical retail store.
Oregon is one of the few states explicitly stating responsibility for internet sales and e-commerce packaging. Specifically, their legislation says that when it comes to packaging used to ship the packaged item to a customer within the state of Oregon (such as an outer carton with void fill or mailing envelope), the producer with compliance obligations is the entity that packages and ships the packaged item. Other states more vaguely discuss internet sales, and it is assumed that the definition of the responsible party in these situations will be clarified over time.
In most situations, small businesses with less than $5 million of sales or less than one metric ton of covered products in the state are exempt. Non-profit and government organizations are also typically exempt.
Which States Have Already Passed EPR Legislation?
On July 2, 2021, Maine passed LD 1541, “An Act To Support and Improve Municipal Recycling Programs and Save Taxpayer Money.” The legislation aims to increase recycling rates, reduce packaging pollution, and save taxpayers money. This law requires packaging producers (i.e., brand owners) to contribute fees to a single statewide Stewardship Organization (SO). The SO will compensate municipalities managing the packaging waste their households and businesses generate. This compensation will cover everything from infrastructure improvements to household education to developing end markets for recycled content. The SO will be selected in 2026, and producers will make the first payments into the SO at the end of this same year. Maine has not yet set specific recycling targets and has taken an eco-modulation approach.
- Covered products: Packaging (except beverage bottles which are covered by the state’s bottle bill)
- Approach to PRO Management: Single SO (stewardship organization) that is awarded a contract by the state
- Producer Fees: Yes, brands will need to pay fees to be determined by the state
- E-commerce Included: Likely, but will be defined by SO
- Recycling Goals: Likely but not yet set, will be formed by the state
- Source Reduction Goals: No specific reduction goals have been set yet
- Eco-Modulation: Allowed, to be developed by SO
- When Do Brands Need to Begin Compliance: Fall 2026
Oregon’s Recycling Modernization Act was passed on August 6, 2021. According to Oregon’s Department of Environmental Quality, the Act aims to “update Oregon’s recycling system by building on local community programs and leveraging the resources of producers to create an innovative approach that works for everyone. The law requires packaging producers to share responsibility for effectively managing their products after use. The new law was enacted on January 1, 2022, and program changes will start in July 2025. Oregon’s legislation focuses on truth in labeling, related explicitly to confusion around composting and plastics recycling. Unlike in Maine (and in Colorado), Oregon’s legislation is set up to create many different PROs. Each producer must contribute to a PRO to sell products in relevant packaging (plastic, food service ware, and paper products). Oregon’s legislation carries targeted plastics recycling rates: 25% by 2028, 50% by 2040, and 70% by 2050. These rates can be adjusted by rule on or after January 1, 2038, but they cannot be adjusted to be lower than 35% or higher than 70%.
- Covered products: Packaging, printed paper, food service ware (except beverage bottles which are covered by the state’s bottle bill)
- Approach to PRO Management: One or multiple (must submit for approval to Oregon DEQ)
- Producer Fees: Yes, brands will need to pay fees, to be determined by each PRO
- E-commerce Included: Yes, clearly defined in legislation
- Recycling Goals: Yes, clearly established in legislation
- Source Reduction Goals: No specific reduction goals have been set yet
- Eco-Modulation: Allowed, to be developed by PROs
- When Do Brands Need to Begin Compliance: Summer 2025
On June 3, 2022, the Producer Responsibility Program for Statewide Recycling Act, House Bill 22-1355, was signed into law. HB 22-1355 sets up a “Producer Responsibility program that requires companies that sell products in packaging, paper products, and food service ware to fund a statewide recycling system to recycle those materials. These companies will form an independent non-profit organization, called a Producer Responsibility Organization (PRO), to coordinate, fund, and manage this statewide recycling system.” Companies will pay membership dues to the program based on the amount and type of packaging they sell in Colorado. A single PRO will be selected later this year (the RFP process will be underway shortly), and the law will come into full force for most producers by July 1, 2025. At that point, producers will no longer sell or distribute covered materials in the state unless they contribute to the PRO. The PRO will cover 100% of the recycling costs in the state, including consumer education and government oversight of the program. The Colorado Department of Public Health and Environment will oversee the PRO and establish an advisory board composed of local governments, recycling companies, non-profits, and other key stakeholders, to help oversee the program and ensure the PRO meets the needs of local Colorado communities and businesses.
- Covered products: Packaging, printed, and other paper products
- Approach to PRO Management: Single PRO (through RFP process), multiple PROs possible after 2028
- Producer Fees: Yes, brands will need to pay fees to be determined by PRO
- E-commerce Included: Likely, but will be defined by PRO
- Recycling Goals: Will be set by PRO
- Source Reduction Goals: No specific reduction goals have been set yet
- Eco-Modulation: Allowed, to be developed by PRO
- When Do Brands Need to Begin Compliance: Summer 2025
On June 30, 2022, California signed Senate Bill 54 into law, creating the largest extended producer responsibility (EPR) program and strictest plastic reduction targets in the country. The act requires single-use and disposable packaging producers “to form a Producer Responsibility Organization (PRO) to manage industry efforts to comply with the law’s requirements.” SB 54 requires that by 2032 all packaging in California be recyclable or compostable, plastic packaging production is reduced by 25%, and 65% of packaging be recycled after use. To work up to the 2032 targets, 30% of packaging needs to be recycled by January 1, 2028, and 40% by 2030. As laid out in the bill, CalRecycle has until July 1, 2023, to appoint members to the advisory board. By January 1, 2024, producers of covered materials must form and join a PRO, and CalRecycle must publish a list of covered categories deemed recyclable and compostable. By January 1, 2025, CalRecycle is directed to adopt all necessary regulations to implement and enforce the law and establish a baseline for the 25% source reduction. The bill covers paper and other materials but does note that the producer-funded framework would not include a material type that has demonstrated a recycling rate of 65% or higher for three consecutive years before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70% annually, as demonstrated to state officials every two years.
- Covered products: Single-use packaging, food service ware
- Approach to PRO Management: Single PRO (through RFP process), multiple PROs possible after 2030
- Producer Fees: Yes, brands will need to pay fees to be determined by PRO
- E-commerce Included: Likely, but needs to be defined further
- Recycling Goals: Yes, clearly established in legislation (for plastic only)
- Source Reduction Goals: Yes, clearly established in legislation (for plastic only)
- Eco-Modulation: Allowed, to be developed by PRO
- When Do Brands Need to Begin Compliance: Winter 2027
Ten additional states have introduced EPR legislation related to packaging in 2022. The Sustainable Packaging Coalition does an excellent job of staying on top of bills that are in consideration. We strongly encourage brands (especially those in or selling into states that have EPR legislation in consideration) to bookmark this resource and check on progress.
How Will EPR Help Circularity and Sustainability?
Ultimately, most EPR legislation aims to build a truly circular economy in which all packaging is recycled and can be turned into valuable goods in their next life.
EPR policies can help us move closer to this end goal in a few ways:
- Statewide Consistency
- Improved Labeling
- Increased Education & Access
- Supply Chain
Eco-modulation is a term to describe financial incentives that reward certain packaging decisions and discourage others. For example, the EPR policy could require producers to pay more if they produce a high volume of black plastics, which are extremely difficult to recycle. Similarly, producers who use high rates of post-consumer waste may pay significantly less (or nothing at all) because the system wants to encourage the development of end markets for recycled content. Strategically designed eco-modulation can help shift the design of and inputs into packaging to be more circular over time. EcoEnclose has seen firsthand that amazingly intentioned brands struggle to choose between a 100% recycled poly mailer and a virgin or PLA mailer made overseas and priced far below the recycled option. If eco-modulation helps narrow the price differential between options far better for the planet, we know this will help brands collectively make more responsible choices.
It is a well-known fact about recycling that two households can live a few miles apart and still have complicated rules about what they can and can’t recycle, all based on the MRF receiving their waste. This creates confusion and distrust and discourages recycling overall. Most EPR legislation drives towards a consistent, statewide set of goods that can be recycled (and then the stewardship organizations would work with and financially support MRFs individually to ensure they can recycle the materials they are receiving).
EPR legislation can be designed to ban misleading labeling. For example, #5 and #6 plastics typically carry the chasing arrows sign on them, despite very few households having ready access to drop-off locations for these notoriously difficult-to-recycle materials. Additionally, PLA packaging (an industrially compostable plastic) often carries the chasing arrows with a #7, which many individuals would assume to mean “recyclable.”
Finally, most proposed EPR legislation sets clear targets for access to curbside recycling and education about how to recycle. This would undoubtedly improve recycling rates and build towards a more circular packaging economy.
Ensuring that producers (and through producers, consumers) more directly pay for the management and advancement of the recycling supply chain that needs to be improved to build a thriving circular economy.
What are the Challenges and Limitations of EPR and Circular Packaging?
EcoEnclose is a staunch supporter of EPR and advocated for this policy within Colorado.
While EcoEnclose is in favor of Extended Producer Responsibility, and we believe EPR can play an essential role in helping companies, consumers, and municipalities move towards more recycled content, recycling, and circularity, we also recognize that EPR (as legislation is currently constructed) has some significant shortcomings that we hope are addressed as more states embrace this tool for change.
- State-by-State Approach
- Carbon Initiatives
- Big Picture Innovation
Perhaps the most significant downfall is that the legislation is all state-specific. This limitation is unlikely to be addressed, given that the state-specific nature of EPR policy in the US is the only reason we are seeing traction. Additionally, while we believe the state-by-state approach will create significant challenges, we also do not necessarily feel a federal EPR policy is yet appropriate (in many ways, we are eager to see what states can accomplish so that national policy can build from the most effective and successful state policy). That said, state variability will cause a lot of issues. Similar to sales tax, brands must figure out how to navigate state-specific EPR legislation and PRO fee structures. Some state policies may incentivize certain types of packaging that are disincentivized in other states, which would cause complexity for brands selling nationwide. Labeling requirements may differ as well. In today’s economy, even the smallest brand can sell across state lines, meaning many companies won’t have the resources to navigate these challenges properly.
It could be argued that a global economy requires a global EPR system. This isn’t necessarily the right thing to advocate for now. Still, it is vital to recognize how global supply chains mean that state and even country-specific packaging, recycling, and circularity policies are inherently limiting.
It is essential to be honest about who ultimately will pay - consumers. When advocates lobby for EPR legislation, they quickly say that these laws will hold “producers” accountable for the packaging waste they create. But, as with any fee imposed on a brand, they will very likely be passed down to consumers, as they are with the $0.75 / gallon paint fee we now incur in Colorado. We are all for this type of packaging fee that we hope will help end consumers be more aware of the impact of their product’s packaging. However, we believe lawmakers and advocates should be upfront about who will ultimately incur the fees created by EPR legislation.
Many don’t deal with carbon and even incentivize choices that run counter to carbon emissions goals.
One of the Catch-22s of packaging is that thinner, flexible plastic packaging is (currently) more challenging to recycle or make with recycled content. However, it has a significantly lower carbon footprint than the paper and rigid plastic packaging it is replacing. In some cases, the eco-modulation incentives of EPR legislation will heavily discourage plastic packaging without necessarily considering carbon emissions. It has been disappointing to see the pulping and paper industry advocate so staunchly against EPR legislation, stating that since their recycling rates are so high, they are unnecessary. There is a significant improvement that needs to be made in the paper industry - in terms of everything from recycling (65% recycling is great, but that means 35% of this very easily recyclable material remains landfilled where it takes up more volume and weight than plastic), recycled content (it is often significantly cheaper to source virgin paper than recycled paper), and the logging industry (which is often cutting trees down in ancient and endangered forests). The fact that EPR is so focused on recycling, without regard to carbon emissions and the sourcing of virgin materials, is a significant miss.
We are still a way from PROs establishing the framework and rules that producers must abide by and pay into. But there is a fear that if rules are made based on the current technological landscape of recycling, they may be restrictive in counterproductive ways long-term. This fear is relevant only if EPR legislation or the selected PROs establish frameworks based on specific features rather than the impact of these features on circularity. For example, a state could set up a fee structure that disincentivizes black plastic (as described above). However, technology could advance over time, making black plastic much easier to recycle.
Additionally, it is easier for plastic to be recycled into a black package (because there is less concern about the impact of inks and impurities). EPR legislation that discourages black plastic would also discourage this type of technological advancement from being pursued (and if this advancement was made, the state isn’t likely to adopt it). Alternatively, if frameworks were either reviewed and edited regularly or were developed based on characteristics (i.e., how difficult is it recycle, how difficult is it to make this material with recycled content), we could avoid this concern. Black plastic is one of many issues where this could be a problem - flexible film, bioplastics, next-generation natural fibers, and chemical recycling - all are areas where the industry is advancing rapidly. EPR legislation must support rather than hinders progress.
Packaging Labeling Requirements and Guidelines
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:
- General principles that apply to all environmental marketing claims.
- How consumers are likely to interpret particular claims and how marketers can substantiate these claims.
- 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.
How Packaging Requirements and Laws Affect Online Sellers
The short answer is that it varies significantly by state.
Some requirements only apply to physical storefronts and restaurants and do not apply to online sellers.
Some requirements will apply to any brand that has hit nexus such that they are registered to pay sales tax within a specific state.
Others apply to any retailer wanting to sell in that state, even online and without nexus.
Trends in State-by-State Packaging Requirements and Sustainability Legislation
While each state has unique requirements and laws, some clear trends are developing. Seeing these trends can help you navigate your packaging strategy and better understand what to expect in the future.
- Plastic Bag Bans
- Styrofoam Bans
- PFAS Bans
- Waste Reduction Policies
Looking at the United States, plastic bag bans are the most common type of legislation in effect. States with current bans in effect include Maine, Connecticut, New York, and Oregon.
Some cities like Boston, Jackson Hole, and Arlington have also banned plastic bags at checkouts.
Plastic bag bans affect in-person retailers and shopping centers more than online retailers.
Styrofoam, or polystyrene foam, is another commonly banned material. States like Hawaii, New Jersey, Oregon, and Washington have banned styrofoam use in packaging. Styrofoam is often used for single-use food containers but may also be used as a packaging or insulating material.
PFAS Bans are some of the fastest-growing around the country. PFAS stands for Perfluoroalkyl and Polyfluoroalkyl Substances. These artificial chemicals are toxic to people and the planet. They are “forever chemicals” and don’t break down in the body or the environment.
Many states have already banned intentionally added PFAS in packaging materials, and more have legislation on the way. Some states also make it illegal to label anything containing PFAS as compostable or recyclable.
Even before these regulations started taking hold, we took steps to ensure that all of our packaging materials meet the highest safety standards — and are free from PFAS.
From excess packaging to food in landfill, more states are recognizing the impact of everyday decisions. And they’re working to implement changes to tackle these key sustainability issues. As a result, we’re seeing positive progress toward sustainable goals in states nationwide.
As time passes, you can expect to see more laws and regulations promoting sustainability. By adopting eco-friendly packaging now, you’ll be ahead of the curve and ready for what comes next.
Choosing a high sustainability standard for your packaging also gives you greater flexibility when selling across state lines. In addition, when you know you meet the highest standards, you don’t have to worry about problems for non-compliance.
Retailer Packaging and Sustainability Guidelines
We’re seeing more of the nation’s largest retailers consider sustainability in their business practices and how they work with, select, and incentivize brands whose products they stock and sell.
However, in many ways, their strategies need to be revised. First, they need to be more aggressive and ambitious. Second, because these retailers haven’t collaborated to form cohesive, shared sustainability and packaging guidelines for their brands, the foundation they are building leads to confusion and frustration for their brands who would prefer to package and sell through all of their retailers in consistent ways.
Almost every major retailer has a comprehensive written sustainability plan. Many of these plans include targets for reducing packaging waste in their private-label brands. Some also set targets or at least guidance for the brands they carry.
These are five of the biggest trends we found across the board for retailers’ packaging and sustainability requirements.
Preference for Vendors That Prioritize Sustainability and Social Responsibility
Each major retailer we looked into expressed a desire to work with partners actively pursuing social and environmental good.
Working with conscious vendors helps these retailers to:
- Achieve their sustainability milestones
- Become known as an eco-minded brand
- Provide customers with sustainable options
- Avoid penalties or fees due to wasteful practices
- Remain competitive in the marketplace
Some of the significant areas that retailers evaluate when looking at vendors include:
- Planet-conscious sourcing of materials like paper and palm oil
- Transparent supply chains free from forced labor or other unethical practices
- Thoughtful packaging that eliminated unnecessary waste
- Willingness to comply with the retailer’s sustainability guidelines
As retailers’ sustainability targets draw nearer, we expect to see even more preference given to vendors that work to care for the environment.
Reducing and Offsetting Carbon Emissions
Another nearly universal trend between retailers is a goal to reduce emissions.
Many of these businesses have set expanding targets over the next few years.
This is important and distinguishes from what states do with many packaging requirements, prioritizing plastic reduction and curbside recyclability over reduced carbon emissions.
As businesses seek to reduce emissions, retailers are starting to look hard at their Scope 3 emissions. For some companies, this means getting as much data as possible about the emissions generated by the brands whose products they are selling. The more that brands can have their emissions readily quantified and easily accessible to retailers, the better positioned these large companies are to track their Scope 3 emissions (and the stronger partner you become to them).
Shifting Toward Specific Types of Packaging Materials
Many retailers also outlined ways they are prioritizing specific packaging materials over others.
For many retailers, the focus is on packaging end-of-life. Walmart and Amazon, for example, have guidelines and incentives around packaging recyclability (and Amazon sellers incur fees if their packaging does not follow Frustration-Free Packaging guidelines.
Some retailers are prioritizing a reduction of virgin plastic wherever possible.
Some are asking for better source material for packaging, including recycled content or FSC-certified paper.
- Setting minimum post-consumer recycled content requirements
- Redesigning packaging to be readily recyclable
- Simplifying packaging to reduce excess waste
- Sourcing paper packaging from FSC-certified forests
- Eliminating PVC, polystyrene, or unnecessary plastic
- Including end-of-life instructions on packaging
In the coming years, retailers like Kroger, Walmart, and Target aim to make their private brand packaging reusable, recyclable, or compostable. However, retailers will also look for vendors working toward similar sustainable packaging goals.
Working to Cut Down On Food Waste
While not directly related to packaging, food waste is still one of the major contributors to landfills. And it is also a leading source of greenhouse gas emissions. This is why many retailers have made goals to reduce the amount of food they waste at a retail level.
If you sell food products, you can help retailers achieve food waste goals by:
- Ensuring packaging is sturdy and well-sealed, so food isn’t lost in shipping
- Choosing the best package to extend your product’s life
- Eliminating wasted food in your operations
And as more bans on styrofoam or plastic in food packaging come into play, choosing sustainable packaging for your food products will help you be prepared for the future.
Designing a More Circular Economy
We’re encouraged to see more engagement in the circular economy from retailers. Target, in particular, has set goals to increase access to and awareness of circular brands. They’ve also aimed to design all their owned brand products for a circular future by 2040.
A circular approach to packaging is one of the most sustainable methods available. This is because it helps close the loop, so functional materials get more than one chance at life. It also makes the best use of available resources and encourages people to consider the big picture of their consumption.
We hope more retailers and brands continue to dig into what a circular economy means and how they can implement it.
As a vendor, you can work toward circularity by considering the entire lifecycle of your product packaging and taking steps to keep it out of landfill.
Recommended Action Steps For All Brands
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.
Eliminate PVC, polystyrene, and PFAs
PVC and polystyrene (Styrofoam) are relatively standard for e-commerce shipments but have easy replacements. PVC can typically be quickly swapped for recycled polyethylene or (in some situations) recycled paper. Styrofoam can almost always be replaced with paper-based void fill, corrugated inserts, or molded pulp.
PFAs are generally used in food service (and are not common in e-commerce and other non-food contact packaging). One unintended consequence of food service moving from plastic to paper packaging is the introduction of PFAs, which give paperboard the grease and moisture-resistant properties needed. PFAs are common in restaurants’ take-out boxes, pizza boxes, fast food packaging, cupcake liners, ice cream tubs, and popcorn boxes. If you use packaging like this in your business, switch to PFA-free options, recognizing that these will likely be more expensive than those made with PFA.
Minimize Single-Use Packaging
If you operate physical storefronts, minimize single-use packaging and bags, particularly lightweight (<1 mil) plastic bags. It is optimal to execute this strategy in a way that encourages your customers to bring their reusable bags. Alternatively (especially if you operate a premium store), you can replace single-use bags with your company-branded reusable totes. If you plan to replace plastic bags with paper shopping bags, look for paper bags with high levels of recycled content.
Make Your Packaging Readily Recyclable
Make your packaging “monomaterial” where possible, meaning made with a single material, and avoid packaging materials that households do not have ready access to recycling such as polypropylene and Styrofoam.
If you are in food service and your packaging is likely to get discarded with food waste, make this packaging readily compostable.
Move Thoughtfully to Reusable Packaging
In some instances, reusable packaging is an ecological and financial no-brainer. If you are in food service, this means reusable dishware and silverware. Consider Tupperware-style to-go containers that can be reused many times by customers. In e-commerce, reusable packaging can make sense in certain situations but is often not the ecologically preferred approach. If your business model is one in which reusable packaging applies well, start testing out reusable mailer solutions.
Increase Recycled Content
Increase the recycled content in your packaging, focusing on post-consumer waste. Recognize that waste material reused in the same manufacturing line does not constitute recycled content (according to the FTC) and should not be prioritized.
Reduce the Weight and Source Material
Reduce the weight and source material in your packaging by finding ways to make your materials thinner or smaller packaging.
Ensure Labeling is Clear and Informative
Review your packaging design and ensure your labeling is clear and informative.
Avoid using vague labels like “eco-friendly,” “recycled content,” and “compostable” in isolation. Add statistics and detail, such as “X% recycled content with a mix of pre- and post-consumer.”
Add the detail needed to help your consumers take the right end-of-life steps.
Beware of "Compostable" Language
As more composters refine their operations for success and economic sustainability, many are removing packaging from their acceptable materials to reduce contamination and improve their compost output quality.
In Colorado, a 2023 law requires a "truth in labeling" for packaging and products labeled, marketed, or represented as "compostable." This law requires third-party validation and labeling distinction. Unless the product is compostable-certified, the bill makes using a composting label or implying such a deceptive trade practice violation.
For brands using paper-based packaging to reduce plastics or minimize potential end-of-life litter, we recommend using more accurate descriptors like "naturally biodegradable" instead of "compostable."
Stay Current with PRO Updates
If you are in or sell product to end consumers within an EPR state, stay current as PROs are selected, and information becomes available to help guide brands on what packaging is covered, who the responsible parties are, and how to join and pay fees into PROs.
Comprehensive List of Guidelines, Legislation and Bans
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