The years 2021 and 2022 were unprecedented with groundbreaking new laws in the packaging sector. Four states adopted new extended producer responsibility (EPR) laws, two states adopted new recycled content mandates for various types of packaging, and California adopted a first-in-the-nation recycling labeling law. The year 2023 will also likely prove to be significant and precedent setting for packaging policy.
EPR in 2023
Following the 2022 passage of Colorado’s and California’s EPR laws for all types of packaging, there have been more discussions with industry groups on what EPR laws should look like in 2023 and beyond.
Maine’s and Oregon’s 2021 laws created a precedent that EPR in the United States would be different from Canadian programs and rely heavily on state agencies making decisions about most aspects of the EPR system. In contrast, Colorado has the only EPR law that gives most of the decision-making authority to the producer responsibility organization. And California established its EPR program with source-reduction targets that move beyond anything seen in the world.
Discussions about 2023 started in several states regarding EPR legislation, and there is much debate over the role of producers and state governments under future EPR programs. These negotiations have been focused on New York, New Jersey, Washington, Hawaii, Maryland, Connecticut, Vermont, and Illinois. We likely will see states taking language directly from the four states that passed EPR in the past two years. Yet, the question remains as to whether a model with broader industry support will evolve in 2023.
It is likely we will see the passage of at least two or three more EPR programs at the state level, and the impact will continue to affect the flexible packaging industry for several years to come.
In 2021 and 2022, Washington and New Jersey passed landmark recycled content mandates that impact some flexible products. The recycled content mandates in these states range from 15% to eventually 50% in some product categories in the future. These types of laws are likely to be considered in several states such as New York, Illinois, and Vermont.
With its passage of Senate Bill 343 in 2021, California will ban recycling labeling symbols and claims if certain packaging types are not actively recycled and have markets in California. This state-specific requirement
is reshaping how companies think about labeling for recycling, and discussions are ongoing in states like New Jersey, New York, Washington, and Oregon for similar requirements in 2023.
Banning certain chemicals in packaging has become an increasing issue for the flexible packaging industry, particularly wide-ranging chemical bans and reporting laws for per- and polyfluoroalkyl substances (PFAS), even if they are not intentionally added to flexible packaging. Some of that attention is being seen in New York, Connecticut, Maine, and Rhode Island. It is nearly certain that more PFAS requirements are coming in 2023 and could have an impact on the flexible packaging industry.
So as 2023 kicks off, it is shaping up to be an active year in the states, and the flexible packaging industry will need to be engaged to help navigate this ever-evolving policy picture.
Lauren Aguilar is a government affairs associate at the firm Serlin Haley, a lobbyist for the Flexible Packaging Association, based in Washington, D.C.