by Will Grassle, Junior Associate, Policy & Programs
In the last two years, packaging Extended Producer Responsibility (EPR) legislation was enacted in four states. So how do they compare? In this summary comparison, we look at similarities and differences in the laws, which will impact new legislation that we expect to be introduced in a significant number of states in the coming year. This is the third in a multi-part blog series, which analyzes the four packaging EPR laws.
We used PSI’s Elements of Effective EPR Legislation to compare the laws in Maine, Oregon, Colorado, and California. Our elements use the following criteria:
- covered materials/products
- covered entities
- collection and convenience
- responsible party (i.e. “producer”)
- governance, funding inputs
- funding allocation
- design for environment
- performance standards
- outreach and education requirements
- equity and environmental justice
- implementation timeline
- key definitions
- additional components
For brevity, our analysis of these four laws did not include the following elements: enforcement and penalties for violation, stewardship plan contents, and annual report contents.
This blog is part three in our multi-part series. It focuses on whether or not there are unique provisions and/or exemptions in the legislation related to the “producer” responsible for funding and managing the EPR program; it also lays out each state’s criteria for determining the governance roles: program operations, administration, multi-stakeholder input, oversight, and enforcement.
For analysis of covered materials and products, please read part one; for a summary of covered materials, collection and convenience standards, please read part two.
MAINE: ARE THERE UNIQUE PROVISIONS AND/OR EXEMPTIONS FOR PRODUCERS AND WHAT IS THE GOVERNANCE STRUCTURE?
UNIQUE PROVISION
An entity that re-packages a product for resale is the producer of the added packaging.
PRODUCER EXEMPTIONS
- Small businesses (<1 ton pkg or <$2m gross revenue) are exempt.
- Mid-sized businesses (<$5 million gross revenue/year) are exempt for first three years.
- Producers of perishable food with <15 tons of packaging are exempt.
- Businesses with at least >50% revenue from salvage, closeouts, bankruptcies, and/or liquidations are exempt.
GOVERNANCE CRITERIA
- One Stewardship Org (SO): Potential SOs – can be for- or non-profit – submit bids to DEP that include program plans; DEP selects and contracts with one SO and approves its plan.
- SO Board(s) not dictated in statute.
- Advisory Council: Another shorter option – There is no Advisory Council. SO administers program, but rulemaking does call for various mechanisms to allow for ongoing stakeholder involvement.
- Plan Oversight: SO is a contractor to Maine DEP, must get approval for all program expenditures.
OREGON: ARE THERE UNIQUE PROVISIONS AND/OR EXEMPTIONS FOR PRODUCERS AND WHAT IS THE GOVERNANCE STRUCTURE?
UNIQUE PROVISIONS
- Un-branded packaging: The producer is the manufacturer of the packaged item (the product inside the packaging).
- Shipping packaging: The producer is the person that packages or ships a product to a consumer.
- “All other packaging”: The producer is the first distributor into the state.
- Printed publications: The producer is the publisher; newspapers and magazines can provide in-kind advertising in lieu of some or all fees.
- Food service ware: The producer is the person that first sells in or into the state.
PRODUCER EXEMPTIONS
- Small businesses (<1 ton covered materials or <$5m gross revenue) are exempt.
- Restaurants, food carts, and similar food service businesses, if they do not produce branded food service ware, are exempt.
- Producers whose products are covered under the bottle bill and distribute less than five tons of other packaging into the state are exempt.
GOVERNANCE CRITERIA
- One or more PRO(s), must be 501 (c)(3) nonprofit/s; each submits stewardship plan(s) to the state.
- PRO Board(s) not dictated in statute.
- Advisory Council: Seventeen voting members appointed by the Governor and two non-voting legislators.
- Plan Oversight: Oregon DEQ may suspend plan approval if major violations occur.
COLORADO: ARE THERE UNIQUE PROVISIONS AND/OR EXEMPTIONS FOR PRODUCERS AND WHAT IS THE GOVERNANCE STRUCTURE?
UNIQUE PROVISIONS
- Un-branded packaging: The producer is the manufacturer of the packaged item (the product inside the packaging).
- Shipping packaging: The producer is the person that packages or ships a product to a consumer.
- “All other packaging”: The producer is the first distributor into the state.
- International Imports: The first company that imports into the U.S. is the producer.
- Printed publications: The producer is the publisher; newspapers and magazines/periodicals can provide in-kind advertising in lieu of some or all fees.
PRODUCER EXEMPTIONS
- Small businesses (< 1 ton covered materials or <$5m gross revenue not including on-premises alcohol sales) are exempt; rulemaking to adjust dollar threshold in 2023 & annually thereafter.
- State & local governments are exempt.
- Nonprofits are exempt.
- Agricultural employers with <$5m gross revenue from in-state consumer sales are exempt.
- Individual businesses operating physical retail food establishment are exempt.
- Builders, construction companies, and construction contractors are exempt.
GOVERNANCE CRITERIA
- One PRO to start – CDPHE may approve another in 2029; must be 501(c)(3) or 501(c)(4) nonprofit.
- PRO Board must include non-voting members from trade associations, membership must reflect diversity in size and type, and board meetings are subject to public notice.
- The Advisory Board will be created by CDPHE and will be comprised of 13 voting members plus two nonvoting liaisons from CDPHE and the PRO.
- Plan Oversight: State approves plan after input from advisory board; legislative budget committee must approve program goals recommended by needs assessment before initial plan is developed.
CALIFORNIA: ARE THERE UNIQUE PROVISIONS AND/OR EXEMPTIONS FOR PRODUCERS AND WHAT IS THE GOVERNANCE STRUCTURE?
There are no unique provisions in California’s law.
PRODUCER EXEMPTIONS
- Small businesses (<$1m gross revenue) are exempt.
- Producers of agricultural commodities are exempt.
GOVERNANCE CRITERIA
- One PRO to start: Must be 501(c)(3) nonprofit; CalRecycle may approve additional PROs in 2031.
- PRO Board must include non-voting members from material trade associations and companies.
- Advisory Board is appointed by CalRecycle with 13 voting and three non-voting members.
- Plan Oversight: State may withdraw PRO approval if requirements are not met.
COMMONALITIES IN PRODUCER DEFINITIONS
Producers are primarily the brand owners of products that use covered materials (i.e., the brand owner of the product inside the packaging). For products whose brand owner has no physical presence in the U.S., the producer is the importer, such as:
- Manufacturers selling packaged products or covered paper products under their own brands, or unbranded.
- Licensees of brands or trademarks if the product manufacturer is not the brand–owner (except Maine).
- First importer of a packaged product or covered paper product using covered materials that sells or distributes it into the state .
COMMON ELEMENTS OF GOVERNANCE ACROSS ALL LAWS
- Except in Oregon, producers may comply individually if they choose, rather than joining a PRO/SO, although there are specific requirements related to this in Colorado and California laws. In Maine, producers may also comply individually subject to a state-approved alternative collection program.
- Except in Maine, an Advisory Council or Board provides input to the state and PRO/s on stewardship plans, annual reports, covered materials lists, needs assessments, and other elements.
- The SO/PRO submits stewardship plan to the state for review and approval.
- The state conducts enforcement and may issue civil penalties for noncompliance.