Federal Packaging Extended Producer Responsibility Legislation Under Development

Beveridge & Diamond PC

Beveridge & Diamond PC

For the first time in decades, federal legislators will soon consider legislation that would require manufacturers to manage and finance end-of-life recycling programs for product packaging. The bill would reflect proliferating extended producer responsibility (EPR) laws in U.S. states and municipalities, as well as abroad.  An outline of the planned legislation was published by Sen. Tom Udall (D-NM) and Rep. Adam Lowenthal (D-Calif.) in July, and comments will be accepted until August 21, 2019. The legislation is expected to be introduced in the fall.

Outline of Planned Legislation

The outline states that the key components of the legislation will include:

  • Requiring product manufacturers to design, manage, and finance end-of-life management for the packaging of their products. The outline does not specify what types of packaging would be included in, or excluded from, the legislation. However, the outline mentions the following as potentially in scope: food containers, packets, and wrappers; drink containers, cups, and lids; tobacco products with filters; wet wipes; and lightweight plastic bags.
  • Imposing national deposit requirements on beverage containers. The legislation would cover glass, plastic, and aluminum, and would require major beverage manufacturers to operate reverse vending systems.
  • Imposing a carryout bag fee. The legislation would require vendors to impose a fee when providing consumers with non-reusable paper and plastic bags.
  • Banning styrofoam. The legislation would ban the use of styrofoam in food packaging, disposable coolers, and shipping packaging.
  • Imposing labeling requirements for plastic. Plastic products would be required to bear labels indicating the presence of plastic and how the product should be disposed.
  • Setting recyclability and recycled content thresholds. The legislation would require that plastic bottles, packaging, and certain other products be 100% recyclable and contain significant recycled content.

Similar Developments in Other Countries and U.S. States and Municipalities

The federal legislation will be introduced at a time when many U.S. states and municipalities, as well as other countries, have considered similar measures. It is currently unclear to what extent the federal legislation, if enacted, would preempt existing state and local laws.

  • Legislators in California are considering bills that would require a dramatic reduction by 2030 in the waste generated from single-use packaging and certain priority single-use plastic products. Related measures were recently debated in Connecticut, Massachusetts, Rhode Island, and the State of Washington.
  • The EU has adopted a single-use plastics directive that includes requirements around extended producer responsibility, labeling, recycled content, separate collection for bottles, and a ban on certain styrofoam products. Together, those requirements cover a variety single-use plastics, including: food containers, packets, and wrappers; drink containers, cups, and lids; tobacco products with filters; wet wipes; and, lightweight plastic bags, among others.
  • Many countries, states, and municipalities have enacted laws that either ban retailers from providing single-use plastic bags to consumers or require consumers to pay a bag fee.
  • Ten states have enacted “bottle bills” requiring consumers to pay a refundable deposit when purchasing a drink container.
  • Many states and localities have imposed EPR obligations on manufacturers and retailers of electronics, pharmaceuticals, paint, carpeting, and thermostats. These laws deal principally with products and not packaging.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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