In recent years, extended producer responsibility (EPR) laws have been spreading in the United States, requiring the guidance of producer responsibility organizations (PROs) that would be central to each state’s development and implementation of EPR programs.
Along the way, a PRO called Circular Action Alliance (CAA) was incorporated in December 2022.
“The No. 1 driving factor is how we can create an organization that can recognize and respond to state-specific realities and needs and be flexible at the state level but still give us economies of scale as we’re working with essentially the same producers across multiple states,” says Olivia Barker, spokesperson for CAA.
“The producers that have the majority of the packaging in the marketplace determined that we needed an organization that could deliver services across states while keeping the unique needs and requirements of the U.S. laws in mind.”
So far, California, Colorado, Maine, Minnesota, and Oregon have passed EPR laws and are in various phases of implementing the rules and regulations in those laws. CAA is a key player, promoting harmony and providing answers to producers and stakeholders eager to know what’s next while offering services as a PRO in states wanting to formalize an arrangement.
Origins of EPR
Solid waste is organized at the local and state levels, points out Andy Hackman, principal lobbyist at Serlin Haley LLP. The patchwork quilt of state and local operations explains the differences in state EPR laws, although the core element of calling on producers to systemize their role in funding and managing aspects of the recycling system is consistent.
“It’s not like Procter & Gamble, General Mills, and Amazon all have to come up with their own programs,” he says. “The idea is that producers are going to work together and come up with and plan a recycling system.”
In essence, EPR laws and regulations define “producers” of packaging and require them to pay fees based on the amount and type of material they supply into a state. The fees fund recycling system improvements to support and improve state recycling systems. In most states with EPR programs, a PRO or similar entity will have to be approved to implement and administer the law.
From its outset, CAA emerged as a viable candidate for each state’s PRO. As of press time for this issue, states with packaging EPR laws (all requiring end-of-life management of covered materials) and their relation to CAA are the following:
- California: The Plastic Pollution Prevention and Packaging Producer Responsibility Act requires producers of residential and commercial single-use packaging and plastic single-use foodservice ware to join a PRO. Of the EPR states, California is one of two—Minnesota is the other—with requirements that 100% of covered materials be recyclable, reusable, or compostable by 2032. California also requires that 65% of all single-use plastic packaging be recycled by 2032. In addition to the fees the PRO will pay into the program, California mandates that the PRO contribute $500 million annually from 2027 through 2037 to the California Plastic Pollution Mitigation Fund.
- Colorado: Colorado’s statute requires producers of packaging and paper products to join a PRO. The state approved CAA as its first and only PRO in May 2023.
- Maine: A bit of an outlier, Maine requires producers of consumer packaging material to join a stewardship organization (SO) selected through a state-led request for proposal process and fund end-of-life management of that material through the SO. While the law contains EPR elements, it puts more power in the hands of the state Department of Environmental Protection than in producers to determine fees, make decisions, and control outcomes, Hackman says.
- Minnesota: The Packaging Waste and Cost Reduction Act requires producers of packaging, food packaging, and paper products to join a PRO. As of press time, CAA was preparing to register for approval as a PRO.
- Oregon: The Plastic Pollution and Recycling Modernization Act requires producers of residential and commercial packaging, printing and writing paper, and foodservice ware to join a PRO. CAA was the only PRO that continued to participate in the program plan development and PRO approval process.
- Maryland: The Statewide Recycling Needs Assessment and Producer Responsibility for Packaging Materials Act requires a needs assessment of its recycling system. A state Producer Responsibility Advisory Council makes recommendations for potential EPR legislation. CAA has been selected to represent producer interests as the council’s sole nonprofit PRO.
While CAA was created as uniquely U.S.-centric, it was also needed to harmonize producer responses and requirements as much as possible across what was sure to be mismatched state landscapes.
“While there is some alignment in definitions and principles of EPR, with the idea of shifting the cost of managing recycling from local governments and waste handlers to producers, the laws are still quite different,” Barker says.
“You can drive for a streamlined producer experience, program efficiency, and harmonization where possible without losing sight of the fact that each state will have different needs and different requirements and laws.”
CAA looked toward other industries, particularly in paint and mattress recycling, for product stewardship models, melding centralized organization with state-specific adaptability. CAA’s board comprising its 20 founders—all industry giants—governs national affairs and sets policies under Chair Charlie Schwarze, senior director of sustainability at Keurig Dr Pepper.
When states go online with their EPR laws and approve CAA as their PRO, CAA forms state-level organizations to manage implementation on the ground. Currently in place in Colorado and Oregon, CAA’s state offices support producers, collaborate with local governments, promote the deployment of recycling services, engage with stakeholders, and build capacity.
Today, CAA is streamlining the producer application process, its reporting portal, and information and education efforts. Instilling consistency “in what is otherwise a potentially fragmented system” reduces strain on producers by minimizing points of contact, providing guidance for efficiently allocating compliance resources, and sharing insights into common threads across states that help producers simplify data preparation.
CAA in Action
As a 501(c)(3) nonprofit, CAA doesn’t lobby the state lawmakers who negotiate and debate the details of EPR legislation, but it can serve as a trusted provider of information.
CAA’s primary role begins after passage, working for successful implementation and supporting producers in meeting their compliance obligations. CAA plants its flag during the rulemaking process, providing detailed feedback to help sharpen definitions and sequence the process logically. Getting clarity on definitions and timelines is critical to helping producers prepare for accurate packaging data reporting, which supports the creation of a fair fee schedule.
“We provide our point of view on regulatory concepts so we’re ready with the state to hit the ground running when it’s time to turn the program on,” Barker says.
As a state-approved PRO, CAA then develops the program plan, structuring a strategic approach to the PRO’s follow-through and compliance.
“The program plans are not carbon copies of one another because it depends on what the law requires, but it tells the state and other interest holders how the PRO will be approaching this work and how they will be working with all of the different interest holders in the system, especially the service providers and local governments, to ensure the requirements of the law can be met,” Barker says.
“You can drive for a streamlined producer experience, program efficiency, and harmonization where possible without losing sight of the fact that each state will have different needs and different requirements and laws.”
Olivia Barker, spokesperson for CAA
Through it all, packaging industry players are asking, “Am I a producer?” CAA strives to make the answer clear. Each state’s definition varies, but in general, the entity that controls the manufacture of the product is the responsible producer. As policymakers see it, even brand owners who contract out their manufacturing will be deemed as responsible producers because they create the packaging specs.
“At the top of that producer hierarchy are the brand owners based on the level of influence they have over the packaging they are using for their products,” Barker says.
“There are plenty of nuances. We have prioritized working with regulators to clarify some of these ambiguities in the laws.”
CAA publishes guidance as soon as clarity emerges for producers “anxious about implementation and hungry for information,” she adds. It also publishes state-specific scenarios as examples to help brand owners, suppliers, or other obligated producers make the determinations across their packaging portfolios.
Role of Flexible Packaging
Must flexible packaging converters register as producers? It depends. As Hackman explains, unless their name is on a piece of film or a package, they are probably one step removed from obligation, although Oregon, California, and Maine could classify commercial packaging such as flexible skid wrap as a covered material.
“Depending on where you sit in that chain, you could be responsible,” he says. “That’s the ‘could be’ area. If your material is going into a commercial setting, you could be responsible.”
Flexible Packaging Association (FPA) members are—“for the most part”—not considered brand owners, says Dan Felton, president and CEO of FPA. But their customers will need data and will order changes in materials that reduce their fees or earn the benefits of eco-modulation, which incentivizes brand owners to choose more sustainable materials, he adds.
As Barker notes, flexible packaging has a stake in the future of state-level recycling. Gaps remain between the existing recycling infrastructure and its capabilities to process flexible films. California’s EPR law imposes a future ban on materials not considered recyclable by 2032.
“That’s where there’s a real need for the PRO, with industry, with existing collaboratives, and the recycling systems operators, to figure out how to drive higher recycling rates for this material,” she says.
FPA has been a valuable partner in educating members about EPR laws and targeting potential producers with CAA’s messaging, Barker says.
“We anticipate deeper and more conversations as we are building and starting to implement the program plans to make sure we are fully leveraging the expertise and data from the flexible packaging industry,” she says.
FPA members and converters are “keenly aware of and paying attention to what’s going to happen as EPR rolls out,” Felton notes. “Some will say that EPR is a brand owners’ issue, and that’s not untrue from the standpoint of fees paid directly, but obviously everybody up and down the value chain is going to be involved. If they’re not already involved, they’re going to be involved pretty quickly.”
Through dialogue and close collaboration with CAA and other stakeholders, FPA is working toward infrastructure and EPR funding that supports recycling harder-to-recycle materials, he says.
“There are some very real scenarios where, depending on what happens between now and 2032, some flexible packaging could end up on the wrong side of the equation,” Felton says.
“We don’t want a ban, so we’re working very closely with brand owners, very closely with the Circular Action Alliance, and very closely with the states that are setting up regulations under the new laws to create potential paths forward to recycle flexible packaging rather than have it be banned or end up in landfills.”
Looking Ahead
EPR laws invite producers to participate in a bureaucratic process, allowing them within a PRO such as CAA to “figure out how we’re going to, bluntly, tax ourselves to raise money in order to do this, and it allows us to say what we think is feasible,” Hackman says. “It gives you a voice to say, ‘This is what we think we can do.’ ”
Historically, one or two states pass an EPR bill every year, Hackman adds. Recycled-content laws in New Jersey and Washington are “definitely not EPR,” but both states are actively considering EPR, he says. New York is also considered close to passage.
The spread of EPR laws brings risks and opportunities to flexible packaging, and FPA continues sustaining good relations and dialogue with lawmakers and regulators, Felton says. FPA will also be in front of members, asking what they would like to see “so we can get even more proactive as we have more laws come in place and the regulations behind them to ensure your interests are being protected.”
As existing state EPR laws go live and new ones are proposed, CAA continues pointing toward unity—“unity in producer definitions, unity and harmonization in covered materials, optimally harmonization in how we categorize those materials,” Barker says. “There are things we need to be consistent about so producers have the predictability and the opportunity to prepare to meet their obligations across a growing number of states.”
M. Diane McCormick is a writer and editor based in Pennsylvania.