In this annual Q&A, AMERIPEN Executive Director Dan Felton and the association’s principle lobbyist, Andy Hackman of Serlin Haley, provide updates on current state and federal packaging legislation along with insights on what to expect in the coming year.
The trend of more states enacting full packaging producer responsibility, also referred to as extended producer responsibility [EPR], laws did not continue during 2023, although two states, Illinois and Maryland, did enact groundwork laws. Can you tell us more about that and what we might expect to see on additional EPR legislation in 2024?
In 2023, we saw nearly 40 bills in play across at least 18 states dealing with packaging producer responsibility in one way or another. AMERIPEN was deeply engaged in advocacy efforts and negotiations in many of those states on behalf of the packaging industry, but in the end, only two bills, in Illinois and Maryland, made it across the finish line. Both new laws require a needs assessment to be conducted to help inform any full packaging producer responsibility programs that might advance in the future and establish an advisory council to help advise on the needs assessment and potentially other matters in the future. Both states began naming members for their advisory councils in December. Maryland’s law also requires the selection of a single producer responsibility organization [PRO] to advise on the needs assessment. In October, the Maryland Department of the Environment [MDE] announced that it had selected Circular Action Alliance [CAA] as the PRO, which is the same organization that the Colorado Department of Public Health and Environment [CDPHE] selected in May to be Colorado’s only PRO.
We fully expect the heavy volume of proposed packaging producer responsibility legislation to continue in 2024, but it’s difficult at this point to say with any certainty how many bills will have significant traction and if we’ll see any new EPR laws enacted in 2024, given that it’s an election year. We’re currently actively engaged in several states, including Hawaii, Minnesota, New Jersey, New York, and Washington State and are already deeply involved in the discussions and negotiations in these states to help shape the best possible outcomes for packaging producers and the recycling system. Michigan and New Hampshire are a couple of other states we’ll be watching closely.
A significant amount of activity took place in 2023 to advance implementation and rulemaking for the four existing packaging producer responsibility laws in California, Colorado, Maine, and Oregon. Can you tell us more about that and what you’re expecting in 2024?
CalRecycle, one of California’s environmental agencies, completed an extensive series of stakeholder workshops in 2023 to help inform preliminary draft regulations that were released in late December, 2023. Keep in mind that California has some unique producer performance goals and requirements, including 25% source reduction. CalRecycle is expected to name a single PRO as soon as this month, and while they may require producers of covered packaging materials to register with the PRO as soon as this year, those producers will not have to be compliant with requirements in California until January 2027.
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Colorado’s Producer Responsibility Advisory Board has been meeting regularly for the past year to help inform implementation of the EPR program, and CDPHE has hired consultants that are in the process of completing a required statewide needs assessment to help shape producer requirements. In early December, CDPHE released four informal draft rule concepts for which it will host informational webinars and take public comments in January and February, and then initiate formal rulemaking around May of this year. This is an excellent opportunity for Packaging World readers to directly engage in helping shape what will become the final rules. Starting in July 2025, producers in Colorado will have to join and participate in CAA or submit their own individual program plan to the state.
Maine’s Department of Environmental Protection [DEP] has significant decision-making authority under the law. It will select and award a 10-year direct contract to one PRO, and it will approve the needs assessment, annual reports, and investment budgets submitted by the PRO. This level of engagement by a state agency is unique in contrast to the other states, which let industry drive more. Conceptual draft rules for the EPR program were released in September and October following a nearly 18-month stakeholder engagement process, and the state initiated the formal rulemaking process in late December. It is anticipated that the final rules will be adopted sometime in 2024, but producer compliance won’t begin until the fall of 2026.
Oregon’s Department of Environmental Quality [DEQ] has the authority to approve one or more PROs, which will be responsible for setting and collecting membership fees and certifying that covered products are indeed recycled. Rulemaking for implementing Oregon’s law is steadily progressing, with the first major rule approved this past November and development of a second now underway and anticipated to be approved later in 2024. Producers must start paying fees and reporting to a PRO by July 2025.
What other packaging policy received consideration in the states in 2023 and may continue in 2024?
We continued to see some states consider post-consumer recycled-[PCR] content requirement legislation in 2023, but only Connecticut enacted a new law mandating rates and dates for the use of PCR in plastic beverage containers. Washington State considered legislation to expand its 2021 recycled-content mandate law to additional forms and types of plastic containers, but that bill failed to advance. AMERIPEN expects to see Washington State introduce some form of that language again in 2024. In addition, several other states will also likely consider recycled-content mandates as standalone legislation or wrapped into packaging producer responsibility proposals. In the meantime, we’re keeping a close eye on New Jersey, where a new recycled-content mandate law covering rigid plastic containers, glass containers, paper and plastic carryout bags, and plastic trash bags went into full effect this month. However, enabling regulations from the New Jersey DEP are still not in place to help brand owners and packaging manufacturers fully understand how to be compliant with the law.
Felton: Following the enactment of California’s landmark labeling for recyclability law in late 2021, which prohibits the use of the chasing arrows or any other indicator of recyclability on products and packaging unless certain criteria are met, we continued to see other states introduce similar language in 2023, but none gained any significant traction. We expect more states to consider labeling legislation in 2024, including for compostability. There was an increased focus on “toxics” in packaging in 2023, with ongoing interest from policymakers in certain chemicals, like PFAS [per- and polyfluoroalkyl], either in or used to manufacture packaging and other products. This trend is expected to continue in 2024 and could expand well beyond PFAS to other chemicals and additives. There was also an increased focus on advanced recycling, also known as chemical recycling, in 2023 that will likely continue during 2024—if not standalone legislation, then at least within the context of packaging producer responsibility and recycled-content discussions. Finally, there is now a consistent policy discussion about the potential for additional deposit return systems, or bottle bills, in the U.S. as some material sectors see that as a viable path forward to increasing the use of PCR. This may result in more traction for bottle bill proposals at the state level and the potential for more pressure at the federal level for a national bottle bill.
Is there anything happening at the federal level?
We saw a lot of legislation introduced for potential consideration in Congress in 2023, but most of it did not gain any significant traction. This included the Break Free from Plastic Pollution [BFPP] Act [S.3127/H.R.6053], which was reintroduced and includes packaging producer responsibility language, the Rewarding Efforts to Decrease Unrecycled Contaminants in Ecosystems [REDUCE] Act [S.2844/H.R.5564], which proposes a virgin plastic resin tax, and the No Toxics in Food Packaging Act [H.R.6105], which would declare five classes of substances—ortho-phthalates, all PFAS, all bisphenols, including A, B, S, F, or AF and related compounds, styrene, and antimony trioxide—as unsafe for food contact. Two other bills that AMERIPEN has actively supported were reintroduced in 2023. These were the Recycling Infrastructure and Accessibility Act [S.1189/H.R.6159], which would establish recycling access pilot grant programs for rural and underserved communities, and the Recycling and Composting Accountability Act [S.1194/H.R.4040], which would support/fund data and reporting for accurate recycling and composting rates. While all these bills will be eligible for further consideration in Congress in 2024, it’s unclear how much traction any of them might gain given the partisan split in Congress as well as more pressing legislative priorities during a major election year. However, discussions on packaging and recycling continue to grow in Congress, and in the long-term, there is potential for some legislation to pass if the politics align.
|Read Dan Felton’s column on the regulatory impact of FTC’s update of the Green Guides.
While we didn’t see significant traction on federal legislation in 2023, we did see quite a bit of federal administration and regulation activity in 2023. This included the U.S. Environmental Protection Agency [EPA] rolling out some elements of its National Recycling Strategy, including a Draft National Strategy to Prevent Plastic Pollution. In November, the EPA released proposed updates to its voluntary Safer Choice Standard program for cleaning products and disinfectants, which would significantly expand requirements for packaging, and in December, the EPA joined the U.S. Department of Agriculture [USDA] and the U.S. Food and Drug Administration [FDA] to release a Draft National Strategy for Reducing Food Loss and Waste and Recycling Organics. All these proposals will receive further consideration in 2024, and AMERIPEN will continue to be engaged in all of them through comments and industry discussions.
Additionally, just over a year ago, the U.S. Federal Trade Commission [FTC] began the formal 10-year review of its Guides for the Use of Environmental Marketing Claims, also known as the Green Guides. It’s currently unclear if the FTC will modify the Guides after soliciting and receiving comments in 2023 from AMERIPEN and tens of thousands of other interested stakeholders, but we will be paying close attention, as we believe that some of the content in the Guides is ripe for consideration of federal uniformity in light of the California labeling law mentioned above, which is slated to go into full effect in 2025. With other states actively considering similar legislation, AMERIPEN believes that the FTC, EPA, and Congress are good forums for coordinated efforts to establish national definitions and labeling language so we can avoid multiple, state-specific labeling standards, which we believe will result in increased consumer confusion and additional packaging material going to landfill.
In closing, AMERIPEN believes 2024 will be another very active year for packaging policy. We encourage Packaging World readers to get involved with their trade associations, state chapters and chambers, and/or AMERIPEN to ensure their voices are heard. PW
AMERIPEN, a material-neutral trade association for the packaging industry, is focused on the intersection of packaging policy and the environment and educates the industry on the value of packaging.