State policymakers will have a busy year in 2023 as they seek to regulate the packaging industry, with measures expected on extended producer responsibility (EPR), labeling requirements, and recycled-content mandates, says Dan Felton, executive director at AMERIPEN—the American Institute for Packaging and the Environment.
Such efforts become increasingly concerning because states put their own spins on legislation, leading to a hodgepodge of proposals that will make it difficult for packaging companies to conduct business nationwide, Felton says during a presentation on October 25 at PACK EXPO International in Chicago.
“It’s coming fast and furious,” says Felton, who was a featured speaker during the four-day expo. His organization represents companies all along the value chain, as well as trade associations, such as the Consumer Brands Association and the Flexible Packaging Association (FPA). “There’s a whole lot happening here. We can look at that as a challenge—being at the edge of the cliff—or we can look at it as an opportunity. AMERIPEN views this as an opportunity for the industry to engage in these policy discussions and to help shape the future for the packaging industry.”
Here is a closer look at his presentation, titled “Packaging Policy for Now and the Future.”
EPR Advances State by State
EPR legislation is intended to require packaging producers to take responsibility for the end of life of packaging materials and to pay for the systems put in place. The concept started about 30 years ago in Germany, and about 40 countries now have EPR systems, Felton says.
In the U.S., Maine and Oregon were the first to pass laws in 2021, followed by Colorado and California in 2022. About 10 states were looking at their own legislation in 2021, Felton says. In 2022, there were about 40 EPR bills in 18 states.
“That’s a big uptick from where it was a year ago,” Felton explains. “We expect that trend to continue into the next couple of years.”
He says his “crystal ball” hasn’t been entirely clear in the past, “but if I had to guess, we’ll probably have at least two more state laws in the coming year.”
“This is happening very fast in the United States,” he continues, particularly when he compares movement in the past 18 months with the previous 30 years. “For anybody who follows policy, that’s pretty rapid for an issue moving through state legislatures.”
The main problem, he suggests, is that each of the four states—Maine, Oregon, California, and Colorado—has taken a unique approach. As more states consider bills, they likely will put their own touches on EPR as they address key questions such as who will be responsible for running EPR programs and what companies will have to pay into it.
“If there’s anything you take away from this, it is that we have no uniformity yet in the United States around these laws,” Felton says. “Each of these laws is distinctly different.”
One way to address that issue would be to create a national EPR policy, but Felton says that is unlikely to happen anytime soon.
Recycled Content Mandates
The push to add more recycled content to packaging has been coming from all packaging stakeholders, including policymakers, as well as brand owners and packaging manufacturers that are intent on meeting their 2025 or 2030 sustainability goals of having products that are 100% recyclable, compostable, or reusable.
“If producers want to be able to use more recycled content, whether it be paper or glass, whatever, that’s a great thing,” Felton says. “However, we’re having some challenges in the U.S. with policymakers pushing the window further than we’re able to go right now.”
In a study this past year, AMERIPEN found there is a serious lack of supply to meet the demand for recycled materials. While public policy could help supply problems, it also could hinder resolutions if the policy goals are too aggressive, he says.
“It’s a growing conversation at the state level, but it’s not silent at the federal level,” he adds.
California created mandates for recycled content in beverage containers, he says. As other states pursue their own laws, the same problem with uniformity will result, especially if different states require different levels of recycled content.
“It goes toward that concept of policymakers pushing the envelope,” Felton says. While 30% recycled content in a package is possible, higher rates might not be easily obtainable. “How about a proposal we saw in several states in 2022: 90% recycled content in all packaging? It’s not going to happen. Not right now.”
Some policymakers have been calling for “deselecting” packaging materials, which is another word for a ban, he says. Although he hopes that doesn’t happen, he says companies need to be on the alert for when those conversations start.
Other initiatives focused on greenwashing, with California moving to curb the use of the chasing arrow symbols that make recyclability claims. That will create problems because more than 35 states require the chasing arrow symbols.
“This is a good example of getting too far ahead of ourselves—with six, eight, 10 states potentially having individual labeling requirements,” Felton says, adding that AMERIPEN is involved in talks on the federal level to try to standardize labeling requirements. “Anybody who’s familiar with moving your product throughout the country, that’s going to be a problem.”
A state-by-state approach will further discourage and confuse consumers, which will result in more packaging going to the landfill, he points out.
“That’s not a win for anybody, including legislators, including environmentalists, including packaging industries,” he says. “We only have one state that has enacted this thus far, but other states are looking at it.”
Some of the other policy proposals floating around include bottle bills, taxes on virgin plastics, bans on single-use plastics, and bans on the uses of per- and polyfluoroalkyl substances. Legislatures increasingly are considering proposals on advanced recycling and how that can work with mechanical recycling systems, he also says.
“One thing we really need is harmonization, some standardization,” he says. “There’s an opportunity at the federal level for that because we can’t have all these different definitions and different standards and all state by state.”
Thomas A. Barstow is senior editor of FlexPack VOICE®.