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Navigating Extended Producer Responsibility Laws: What Businesses Need to Know

January 29, 2025

Rachel Melissa and Maureen Bayer - Tonkon Torp LLP

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In an important development for the sustainability movement, Oregon and Colorado are implementing Extended Producer Responsibility (EPR) laws that shift the responsibility for managing packaging waste to the manufacturer. The overarching goal of these laws is to enhance the diversion of recyclable materials from landfills, ensure responsible recycling, and ease the financial burden on local communities. Other states with similar emerging EPR laws include California, Maine, Maryland, Minnesota, and New Jersey. Businesses with potential responsibility under any EPR law must (1) determine if the materials associated with its products are covered by the law and (2) determine if they are the responsible producer of those materials. These two inquiries are essential to ensuring compliance and minimize risk.

Understanding the Oregon Plastic Pollution and Recycling Modernization Act

Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) shifts responsibility for the end-of-life management of disposable packaging and paper from local governments to producers, defined as entities selling items using “covered products” such as packaging, printing and writing paper, storage items, and food serviceware. Depending on the circumstances, the producer may be the entity that manufactures the packaged item or paper, the publisher of printed material, the licensee of a brand or trademark under which a packaged item is sold in Oregon, the entity that imports the packaged item into the United States, or the entity that first distributes the packaging into Oregon. Producers will pay fees based on their quantity of packaging materials, and those fees will fund improvements in and management of the state’s recycling infrastructure.

Key obligations for producers under the RMA include:

1. Registration: Producers must register with the state-approved Producer Responsibility Organization (PRO) Circular Action Alliance (CAA)
2. Reporting: Annual reporting on the quantities of “covered products” sold in Oregon – first reports are due March 31, 2025
3. Fee Payment: Fees, based on quantity and weight of covered products sold in Oregon, are currently due July 1, 2025

As the frontrunner in the enactment of packaging EPR laws, Oregon’s experience will likely inform the implementation of this new framework in Colorado and other states.

Colorado’s Producer Responsibility Program

Similarly, Colorado’s Producer Responsibility Program (PRP) requires companies that sell products in packaging and produce paper products to finance a statewide recycling system to recycle those materials. Producers selling products in “covered materials” must establish or join a PRO, which will manage and fund recycling efforts. The PRP defines “covered materials” as packaging material (such as paper bags, glass jars, plastic containers, tin cans, food service packaging) and paper products (such as flyers, brochures, newspapers, and writing materials).

Producers include a wide range of entities that sell or distribute within the state of Colorado, including manufacturers of products using covered materials, manufacturers of paper products, licensees of a brand or trademark for product packaging, importers of packaged products using covered materials into the U.S., packagers or shippers of products sold or distributed in Colorado through the internet; and publishers of written materials. Some exemptions apply to eliminate certain entities from obligation under the PRP, including small businesses (with less than $5.5 million in annual gross total revenue) and entities using less than one ton of covered materials for products sold or distributed in Colorado.

Deadlines for Compliance with the Colorado Producer Responsibility Program:

1. Registration: Producers must have registered with PRO by October 1, 2024
2. Reporting: Reporting: Producers will begin reporting on August 31, 2025, submitting data covering Q1-Q2 of 2025.
3. Fee Payment: Fees, based on quantity and weight of covered materials, must be paid by January 1, 2026

The Role of Producer Responsibility Organizations

In both Colorado and Oregon, Circular Action Alliance has been selected to oversee and administer these programs. PROs act as a bridge between businesses, local governments, and recycling processors, ensuring compliance with state laws and facilitating transparent reporting. They also collect all fees from producers and must use the fees to fund the program.

Challenges and Compliance Tips for Businesses

For producers, compliance with these laws involves navigating a new regulatory landscape, making operational adjustments, and identifying financial obligations. Producers must:

• Understand Covered Products: Determine whether products fall under the scope of “covered products,” such as labels, printing/copying paper, newsletters, plastic containers, paperboard sleeves, paper bags, cellophane wrap, tags, and lids—to name a few
• Calculate Packaging: Accurately calculate and report packaging weight and material composition upon which fees are based. This will require cooperation with packaging suppliers and manufacturers
• Track and Reporting: Establish systems to track quantities of items using covered products sold in Oregon and Colorado (and other applicable states as they come online) and comply with reporting requirements

In Oregon, failure to comply with the Recycling Modernization Act can result in penalties up to $25,000 per day, with the actual penalty amount to be based on various factors. Failure to comply with the Colorado law can result in an initial penalty of $5,000 and daily fines of $1,500 to follow – fines up to $20,000 are permitted for repeat violations of the law.

Practical Steps to Stay Compliant

1. Engage Legal Expertise: Consult with legal counsel experienced in EPR laws to interpret and navigate regulatory requirements
2. Partner with PROs: Join a state-approved PRO to streamline registration, fee payment, and compliance reporting, and to obtain compliance support
3. Develop Internal Systems: Implement robust tracking and reporting mechanisms to ensure accurate data management
4. Educate Your Team: Train employees on compliance obligations and sustainability goals to foster accountability
5. Monitor Updates: Keep abreast of rule interpretations and enforcement trends to anticipate changes and mitigate risks

While the financial and administrative obligations may seem burdensome, proactive compliance offers strategic advantages. Businesses demonstrating environmental stewardship can enhance brand reputation, align with consumer values, and foster long-term sustainability.

The packaging EPR laws in Oregon and Colorado mark a significant shift in how packaging waste is managed. Businesses must adapt to this evolving regulatory landscape by understanding their obligations, partnering with PROs, and investing in compliance systems. With the right approach, producers can not only meet legal requirements but also contribute to a more sustainable and circular economy.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact Maureen Bayer, Rachel Melissa, or any of the attorneys in our Environmental & Natural Resources Practice Group.

About Tonkon Torp
Tonkon Torp LLP is a leading business and litigation law firm serving public companies, substantial private enterprises, entrepreneurial businesses, and individuals throughout the Northwest. Tonkon Torp is celebrating its 50th year in business! See our History Timeline for more information, or visit tonkon.com.