5 years of lessons from extended producer responsibility laws
Legal challenges may slow things, but they won’t stop the momentum for tighter, more widespread regulation. Read More
- EPR is entering its operational phase, with fees, data requirements and enforcement actively shaping packaging decisions.
- While EPR laws are being challenged in the courts, history shows that litigation is a standard industry response to new regulations — not evidence of a rollback.
- To keep pace, producers can act now on established material risks and fee structures, since the alternative — waiting for full regulatory certainty — could mean paying more.
The opinions expressed here by Trellis expert contributors are their own, not those of Trellis.
Extended producer responsibility laws (EPR) for packaging turn five this summer. In August 2021 Maine became the first state to mandate producer responsibility for packaging waste. Now, seven U.S. states have packaging EPR laws that carry huge circularity implications: One in five Americans now lives in a state that shifts the financial burden of managing packaging waste from local municipalities to packaging producers (including brands and retailers).
The financial stakes are high: CalRecycle, the California state agency tasked with EPR implementation, expects to collect $21-$36 billion in fees from producers in the first five years of the state’s EPR program, which was signed into law in 2022. Oregon began enforcement of its program last July, with penalties that could result in fines of up to $25,000 per day.
Producer Responsibility Organizations (PROs), such as the Circular Action Alliance (CAA), are aggregating producer data, setting and collecting fees and directing funds back into recycling systems. Clearly, packaging and responsibility regulations aren’t going away. And as with any big policy shift, pushback is inevitable.
The litigation phase
A spate of high-profile lawsuits has fueled uncertainty around the new laws. But history shows that litigation is a standard industry response to new regulations — not evidence of a rollback. Similar legal actions have stalled but not stopped bottle bills, electronics recycling mandates and emissions standards (not to mention no-smoking and seat belt laws). Delayed implementation signals progress toward long-term industry-regulatory equilibrium, rather than existential questions about these laws’ future.
The latest Trends Report from the Sustainable Packaging Coalition highlights how EPR is maturing towards a new equilibrium, with a clear list of the “known unknowns” — for instance, whether states will eventually harmonize on what’s considered recyclable. As EPR programs mature, sustainability leaders should ask: Has our sustainable packaging strategy grown alongside the regulatory requirements? Consider these three ways to match the pace:
Don’t wait
While some EPR implementation plans are still being written — and more states are considering their own laws — the industry knows enough to plan and act. It’s no secret which product categories currently have single-digit recycling rates and are unlikely to meet strict new requirements, such as California’s 65-percent recycling rate mandate for single-use plastic packaging by 2032.
More difficult-to-recycle packaging materials will face higher fees, based on Oregon and Colorado‘s approved program plans. And labeling on packages — one of the best ways to educate consumers — will require more supporting data about collection, sorting and end markets.
Instead of waiting for the regulatory landscape to settle, producers can minimize risk by planning for packaging regulations that will likely spread and tighten. They can brace for high fees, particularly for difficult-to-recycle materials. A sizable investment in recycling infrastructure will be needed, and companies will help pay for it. By setting these assumptions now, farsighted producers can build a strategy on their own terms, rather than reacting to external timelines.
Take packaging strategy to the C-suite
Packaging is no longer just an environmental issue; it poses significant cost and risk implications. EPR laws, alongside other regulations such as recycled content mandates and truth-in-labeling laws, will lead to limits on sale and distribution, non-compliance penalties and litigation — starting as early as 2028 in California.
That’s why it’s worth the effort to “repackage” packaging for your top executives. They need to understand that compliance with the new laws will require enterprise-level systems for tracking packaging material data at the SKU level. EPR data tracking now affects product development, distribution channels and financial planning across the entire organization.
Frame it as mitigating risk: Companies that treat packaging solely as a sustainability or compliance issue may find themselves locked out of key markets entirely.
Redesign your portfolio
If you built your packaging portfolio from scratch today — knowing what we know about EPR fees, tariffs, market volatility and recycling infrastructure — would you make the same choices? Probably not. Your company would likely rely on more widely recyclable formats that also benefit from lower fees, paper innovations that meet consumers’ sustainability demands and simpler, more streamlined formats. Or, perhaps you’d lean into reusable designs that help you avoid fees altogether.
Redesigning your portfolio won’t be simple. You can’t dictate fees, material costs or recycled content markets, but you can control how much packaging you use and what it’s made of. Starting fresh lets you see the size of the opportunity to cut fees by using different materials, and allows you to take bigger swings that can bring down the cost of using recycled content, moving toward innovative materials — and leading the way into the next half decade of the EPR era.
