Special Focus
Extended Producer Responsibility Laws Extend Their Reach: An Overview
Nov 2003
Sheila A. Millar
In the summer of 2002, we reported on environmental legislation in the United States impacting packaging, providing a comprehensive overview of federal, state, and local laws regulations that affect the production, use and disposal of packaging. This month's focus more particularly examines North American laws and initiatives at the state and provincial level that address solid waste and the recycling of packaging.
In recent years, the use of disposable packaging has grown steadily due to consumer demand for packaging that offers safety, product integrity, and convenience. At the same time, plastic recycling rates have declined. Stymied by the sheer weight of economic factors, U.S. plastics packaging recycling faces:
- an era of shrinking local budgets, where many cities have restricted or entirely gutted curbside recycling or drop-off programs, significantly reducing the availability of post-consumer plastic;
- market dynamics that favor overseas purchasers of recycled resin;
- stalled U.S. post-consumer resin sales due to competitive virgin resin pricing.
Even so, packaging and product manufacturers face continued pressures from states and localities grappling with solid waste disposal concerns. Various jurisdictions have turned to "Extended Producer Responsibility" laws that squarely place the primary onus of waste minimization on the original producers of end products, deemphasizing the role of distributor, retailer, and others. For some years, legislation has been on the books in a small number of jurisdictions in the form of, for example, bottle deposit legislation and mandatory recycled content laws. These state "recycling" laws run the gamut in terms of complexity and punitive reach. Bottle deposit laws; product taxes or fees to fund waste collection, recycling, and disposal systems; mandatory recycled content legislation; and mandatory "take-back" programs reflect concepts that have been incorporated in the European concept of Extended Producer Responsibility.1
In this era of declining recycling rates and limited governmental funding for recycling programs, the question of the day is how far will EPR laws reach to address the problem of solid waste. This month's focus summarizes several recycling systems premised on concepts of Extended Producer Responsibility.
California's Rigid Plastic Packaging Container (RPPC) Act represents one such mandate, which governs source reduction and recycled content of certain plastic packaging containers; the recent efforts of the California Integrated Waste Management Board to bolster the law's implementation by articulating strict civil penalties for non-compliance are also discussed.
Oregon's plastic container recycling program is reviewed; Oregon, long considered one of the pacesetters in state recycling initiatives, has thus far succeeded in meeting its overall 25 percent plastics container recycling rate goals through aggressive recycling of beverage containers, although the overall plastic recycling rate significantly trails those of glass, metal, and paper.
An overview of state bottle deposit or mandatory deposit-refund systems also follows, including an update on a recent amendment to increase California's bottle deposit fees, signed into law by Governor Gray Davis in the waning days of his administration, as well as Hawaii's deposit legislation, passed in 2002 – the first deposit law passed since 1986.
Also discussed is Manitoba's ambitious program – sustained on the backs of beverage companies – to address solid waste from an all materials perspective. We also look to Ontario; while the October 2, 2003 provincial elections delayed approval of Stewardship Ontario's revised "Blue Box Program Plan," companies that introduce significant quantities of packaging and printed paper into the province can expect to fund 50 percent of Ontario's "Blue Box" municipal waste diversion program sometime in 2004.
While the philosophy of shared responsibility that underlies EPR is one that many in the private sector support conceptually, in practice the EPR approach has sometimes resulted in specific legislative requirements that are unbalanced in reach and implementation. The accompanying articles represent an overview of representative EPR approaches to plastic packaging recycling in North America.
FOOTNOTES
1 For a discussion of the U.S. Environmental Protection Agency's support of "extended product responsibility" as compared to the EU concept of "extended producer responsibility," see "Solid Waste: Focus of Extended Producer Responsibility," by Sheila Millar, reproduced in http://khlaw.com, with the permission of Paper, Film & Foil CONVERTER magazine (312.726.2802). Copyright © 2000 by Intertec Publishing. All rights reserved.