Legal experts lay out packaging Extended Producer Responsibility landscape at FGIA Virtual Summer Summit

Two attorneys explained the current landscape of Extended Producer Responsibility (EPR) packaging laws in seven different states at the Fenestration and Glazing Industry Alliance (FGIA) Virtual Summer Summit. Sheila Millar and Rachel Bond (Keller & Heckman) shared their presentation, “The Packaging Extended Producer Responsibility (EPR) Legal Landscape,” providing an overview of current programs and their differences, the challenges being made to them and how to best address specific questions about compliance.

What Is an EPR?
Per the Organization for Economic Cooperation and Development (OECD), an EPR is a policy approach under which producers are given a significant responsibility for the treatment or disposal of post-consumer products. “Producers must assess producer obligations; register with a Producer Responsibility Organization (PRO); report data to them for each applicable state; pay dues for each; and meet performance targets,” said Bond. The Circular Action Alliance (CAA) is a key player in this, she added. The CAA is designated as the only PRO in five out of seven states with EPR mandates.

What EPR Programs Are in Place?
At this time, these seven U.S. states have EPR programs: Maine, Oregon, California, Colorado, Minnesota, Maryland and Washington. Maine was the first state to enact EPR laws, starting their program in July 2021. “It’s challenging because there is no uniform program,” said Millar. “Due to state differences, each EPR program requires its own assessment and compliance work.”

What Is Covered by EPR Programs?
“In all states, packaging is covered, though the definition of that varies,” said Bond. “Food service ware is covered in most states, and paper products are covered in Colorado, Maryland, Maine, Oregon and Washington. Exemptions also vary by state. They may seem broad, but you need to examine them.”

Who Is Responsible for Participating in EPR Programs?
“The producer of any covered material is responsible,” said Bond. “The definition of ‘producer’ also varies in each state. In the case of packaging, the producer is typically the company that manufactures the packaged product and owns or licenses the brand or trademark of the product.” Small producer exemptions exist in all seven EPR states, based on packaging volume and/or sales volume.

What Is the Cost to Comply with EPR in Each State?
“Literally the $64 million question is, how much will all of this cost?” said Millar. “The fee schedules are set by the CAA. That methodology is not public. Each state typically has granular categories, making reporting challenging.” EPR fees cover base material category fees and eco-modulated fee adjustments.

What Are the Sustainability Targets for Packaging?
There are various targets for packaging, said Millar. “In California, the law is focused on plastic packaging for certain categories,” she said. “Oregon is focused mainly on recycling rates. States are approaching targets differently.” One constant, however, is that plastics are the key driver of many states, she said. “There are source reduction targets and specified minimum recycling rates as well as minimum product category rule content requirements,” said Millar.

Is It Challenging to Comply with EPR?
“Unfortunately, the laws and regulations are neither simple nor straightforward,” said Bond. She added that there is not much guidance from states. “The CAA is active in that area, but they are advising companies to seek legal counsel when it comes to specific questions. Companies will have some complex financial decisions to weigh.” Still, there could be opportunity. “Good, clean post-consumer recycled content is going to be more in demand because of this,” said Millar.

What Could Enforcement Look Like?
“Failure to join the PRO can lead to state and CAA inquiries,” said Bond. In addition to monetary penalties, companies could end up on a noncompliance list. “There are contract-related penalties,” she said. “Watch for specific terms in contracts. It’s an evolving regulatory area.”

Millar noted there are some legal challenges in the works. For example, the National Association of Wholesaler-Distributors (NAW) sued Oregon DEQ in U.S. District Court in July 2025, arguing that the Oregon EPR program is unconstitutional. The next hearing will be in July 2026. Millar clarified that the impact of this preliminary injunction applies only to NAW members, and she believes it is possible some cases regarding EPRs will eventually reach the Supreme Court.

Key Takeaways
Bond and Millar agreed on the following, when it comes to EPRs:
• EPR is here to stay; compliance dates have passed and are coming up
• Short-term tasks are registration, reporting, fee payments and source reduction reports (for California)
• Long-term tasks include evaluating packaging to meet performance targets and reduce fees
• More EPR programs are expected this year
• Due to their differences, each EPR program requires its own assessment and compliance work

“There are a lot of nuances involved,” said Bond. “Make sure the right people at your organization are informed and aware, like those in research and development, and finance. It’s likely to grow more complex. We are all watching to see how challenges play out.”

For more information about FGIA and its events, visit FGIAonline.org/events.

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