Packaging Waste Legislative Toolkit

How Packaging Reduction and Recycling Laws Work

These laws establish a Packaging Reduction and Recycling Program that regulates each company that sells products using single-use packaging. These companies must register with a Producer Responsibility Organization (“PRO” sometimes called a “Stewardship Organization”). This is a non-profit organization created by these companies to implement the requirements of the law. The state environmental agency oversees and monitors the PRO.

Companies pay fees to the PRO based on the amount and type of packaging they use. The money from these fees funds the program and goes towards reimbursing local governments for the costs associated with managing packaging waste. The money will also fund investments into other programs and systems that decrease packaging waste through reduction, reuse, and recycling.  Some programs take things a step further and require companies to meet packaging reduction and recycling requirements.

Understanding the Pitfalls of Existing Packaging Reduction and Recycling Laws

This toolkit will help you draft an original bill that avoids some of the pitfalls present in Existing Packaging Reduction and Recycling Laws. Throughout this toolkit we’ll reference five states – California, Colorado, Maine, Minnesota, and Oregon – that have enacted Packaging Reduction and Recycling Laws as of 2024. While all these laws were enacted with the goal of holding producers accountable and helping address the packaging waste crisis, some fall short in significant ways.

For instance, the laws in California, Colorado, and Oregon all leave room for “chemical” or “advanced” recycling to count as recycling under the program. These technologies are expensive, unreliable, and don’t result in recycling meaningful amounts of plastic. Additionally, Colorado’s law gives the Producer Responsibility Organization a tremendous amount of control over the program without sufficient oversight by the state environmental agency. Colorado’s law also doesn’t have strong performance requirements. And California and Oregon’s laws have language that allow the states to water down their performance standards or opt-out of enforcing them.  

These policies can be transformational, but only when designed in a way that holds producers accountable, prohibits false solutions like chemical or advanced recycling, and includes provisions that force companies to reduce waste, and invest in reuseable and refillable packaging systems. All the options presented in this toolkit do just that.  

Before You Begin

To use this toolkit, review each tab (Sections 1 – 16) to explore the different policy options available. From there, decide which policies you want to include in your bill. Each section has sample language for you to copy and paste into our downloadable bill template. This is the language you’ll use to create your bill. To help you get started, you can find an outline of the bill sections below.

Bill Outline

Section 1: Definitions

Every bill starts with a definitions section that states the meaning of the key terms and components of the bill. We have provided suggested definitions for many of these terms in the bill template. However, some definitions involve policy decisions you need to evaluate and make to design a policy that accomplishes your goals and objectives. For Packaging Reduction and Recycling Laws, these includes definitions for “producer,” “packaging,” and “recycling.”

Packaging or Packaging Material

This definition addresses what packaging materials are regulated under the law. Packaging can include a lot of things like plastic wrap, cardboard boxes, plastic containers, bubble wrap, and foam containers. Practically everything you buy comes in some form of single-use packaging.

Packaging Reduction and Recycling Laws cover all different packaging material types (plastics, glass, cardboard, paper, etc.). Most laws also include a small list of products whose packaging is exempt. This typically includes packaging used for certain products like medical devices and dietary supplements which are already regulated under federal programs.

There are two big policy decisions you’ll need to make when developing your bill.

First, is whether to include beverage containers as part of the definition of “packaging.” Although beverage containers are a form of packaging, they’re much better regulated under a standalone Bottle Bill. In fact, including beverage containers in your Packaging Reduction and Recycling Program can result in less recycling. And when beverage containers are included in Packaging Reduction and Recycling Laws you also lose the litter reduction benefits that come with Bottle Bills. For these reasons, Just Zero recommends excluding beverage containers from Packaging Reduction and Recycling Laws, and instead working to pass a standalone Bottle Bill. 

Second, is whether to cover all packaging, or just primary, consumer facing, packaging. Most existing programs focus exclusively on primary packaging which is packaging we see on the shelves at stores. It’s the packaging consumers are stuck trying to manage when we purchase everyday products. However, primary packaging is only one piece of the problem. There is a lot more packaging we don’t see. Typically, this is the packaging used to transport goods from distributors to stores which is often referred to as secondary and tertiary packaging.

Review the following options and choose one to use in your bill.

• Option 1
• Option 2

Cover All Packaging – Not Just Consumer Facing Packaging

This is the most comprehensive and controversial approach.

California decided to go the comprehensive route and covers three categories of packaging material: primary, secondary, and tertiary packaging. Primary packaging is packaging intended for consumers when purchasing products from retailers. Secondary packaging is grouped packaging intended to bundle, sell in bulk, brand, or display products to consumers. Finally, transport packaging or tertiary packaging is packaging intended to protect products during transport from distributors to retailers.

As mentioned above, most existing programs focus exclusively on primary packaging. Opting to cover all packaging will make your proposal stronger, but also more controversial.

Sample Language for Your Bill

Copy and Paste

1. “Packaging” or “Packaging Material” means a discrete material or category of material, regardless of recyclability, including but not limited to such material types as paper, plastic, glass, metal, or multi-material, that is used for the containment, protection, handling, delivery, transport, distribution, or presentation of another product that is sold, offered for sale, imported, or distributed in the state.

Packaging includes, but is not limited to, all of the following:

1. Transport packaging or tertiary packaging intended to protect the product during transport.
2. Sales packaging or primary packaging intended to provide the user or consumer with the individual serving or unit of the product and most closely containing the product, food, or beverage.
3. Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.

Packaging does not include:

1. Medical devices and packaging which are included with products regulated as a drug, medical device, or dietary supplement by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321 et seq., Sec. 3.2(E) of 21 U.S. Code of Federal Regulations, or the Dietary Supplement Health and Education Act;
2. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products or biological origin, and other covered materials regulated by the United States Department of Agriculture under the Virus, Serum, Toxin Act, 21 U.S.C. 151-159;
3. Packaging regulated by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sec. 136 et seq. or other applicable federal law, rule, or regulation; or
4. Beverage containers.

Only Cover Primary (Consumer Facing) Packaging

Under this approach, the program only regulates consumers facing packaging. Also referred to as primary packaging. This is all the packaging you see and are stuck trying to manage when you buy everyday products. This is the largest share of packaging waste and typically managed by residential waste and recycling programs (like curbside recycling if you have that).

Most states adopted this approach. Adopting a similar approach will help your program align with these states. However, it will not address all the packaging waste generated in your state.

Sample Language for Your Bill

Copy and Paste

1. “Packaging” or “Packaging Material” means a discrete type of material, or category of material that includes multiple discrete types of material with similar management requirements and similar commodity values, used for the containment, protection, delivery, presentation or distribution of a product, including a product sold over the Internet, at the time that the product leaves a point of sale with or is received by the consumer of the product.

Packaging does not include:

1. Medical devices and packaging which are included with products regulated as a drug, medical device, or dietary supplement by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321 et seq., Sec. 3.2(E) of 21 U.S. Code of Federal Regulations, or the Dietary Supplement Health and Education Act:
2. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products or biological origin, and other covered materials regulated by the United States Department of Agriculture under the Virus, Serum, Toxin Act, 21 U.S.C. 151-159;
3. Packaging regulated by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sec. 136 et seq. or other applicable federal law, rule, or regulation; or
4. Beverage containers.

Producer

This definition covers which companies will be regulated under the program. In general, the program regulates companies that sell products using single-use packaging. However, figuring out which company is responsible for which product isn’t always easy. This definition provides clarity and helps ensure that the companies that are responsible for making decisions about how products are designed and packaged are the ones regulated under your bill.

Review the following options and choose one to use in your bill.

• Option 1
• Option 2

Tiered Definition That Focuses on Finding the Largest Company Associated with the Product

This comprehensive approach defines the producer as the largest possible company that could be considered “responsible” for the product and its packaging. The definition has different tiers which get more specific as you work your way down. This helps ensure that you first try to identify the largest company – usually a large national company – before looking for a state subsidiary.

This approach is more protective of small businesses. Using it helps ensure the emphasis is on big companies that are the main decision-makers in packaging products.

California’s law utilizes this approach. It first seeks to find the company responsible for manufacturing the product. If the manufacturer cannot be identified or regulated, then the “producer” isthe company that holds the license for the brand or trademark under which the product is sold. If the product isn’t sold under a brand or trademark, then the “producer” is the company that imports the product into the state for sale.

Sample Language for Your Bill

If you take this approach, use the following definition of “producer” in SECTION 1 of the bill template.

Copy and Paste

1. Producer means:
   1. The person or entity that manufacturers or uses in commercial enterprise, a product sold, offered for sale, contained, protected, delivered, presented, or distributed in or using packaging into the state under the brand or trademark of the manufacturer.
   2. If there is no person in the state who is the producer for purposes of paragraph (1), the producer is the owner, or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the product that is sold, offered for sale, contained, protected, delivered, presented, or distributed in or using packaging into the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
   3. If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer is the person or entity that imports a product that is contained, protected, delivered, or presented in packaging into the United States or the state for use in commercial enterprise in the state.

Producer includes a franchisor of a franchise located in the state but does not include the franchisee operating that franchise.

For the purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.

Streamlined Definition

Another approach is to develop a shorter definition of “producer” that doesn’t break down the term into different tiers.

Under this approach, one definition is used to determine who is considered a producer under the law. If there are two companies that could be considered legally responsible for the packaging, then either the state environmental agency or the Producer Responsibility Organization will determine which is considered the producer of that packaging for the purposes of the law.

This approach is streamlined, clearer, and in many ways easier to understand. However, it cannot guarantee that the largest possible company, which is usually the main decision-maker in packaging products, is regulated.

Maine took this approach when it passed the first Packaging Reduction and Recycling Law in the country. Under Maine’s program, a “producer” is either the company with legal ownership of the brand under which the product is sold, or the entity that imports the product into the state.

Sample Language for Your Bill

Copy and Paste

1. “Producer” means a person that:
   1. Has legal ownership of the brand of a product sold, offered for sale, or distributed for sale in or into the State a product contained, protected, delivered, presented or distributed in or using packaging material; or
   2. Is the sole entity that imports into the State for sale, offer for sale or distribution for sale in or into the State a product contained, protected, delivered, presented or distributed in or using packaging material that is branded by a person that meets the requirements of subparagraph (1) and has no physical presence in the United States. 

Producer includes a franchisor of a franchise located in the state but does not include the franchisee operating that franchise.

For the purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.

Recycling

The definition of “recycling” is the most important definition in any Packaging Reduction and Recycling Law. Determining what counts as recycling will have an impact on virtually every aspect of this program. Weak definitions of “recycling” allow for activities that aren’t really recycling, like using glass as construction materials, converting plastics into fuel, or burning waste to count toward your program’s recycling goals. This creates a program that only results in improvements on paper. Unfortunately, large companies and the plastic industry know this, and they’re working to push bills with weak definitions of recycling that will allow them use false, toxic, and polluting practices while pretending they’re making progress.

The sample language below offers a strong definition of recycling that not only prohibits landfilling and incineration from counting as recycling, but also new false solutions pushed by the plastic industry like “chemical” or “advanced” recycling.

Sample Language for Your Bill

Copy and paste the following definition of “recycling” in SECTION 1 of the bill template.

Copy and Paste

1. “Recycling” means the series of activities by which material is collected, transported, sorted, and processed for use in industrial feedstocks in place of virgin materials to manufacture new products with minimal loss of material quality and quantity. Recycling does not include (a) energy recovery or energy generation by any means, including, but not limited to, combustion, incineration, pyrolysis, gasification, solvolysis, or waste-to-fuel, (b) any chemical conversion process, or (c) landfill disposal.

Section 2: Packaging Reduction and Recycling Program

This section creates the Packaging Reduction and Recycling Program. It provides a clear overview of what regulated producers must do to address the financial, environmental, and public health impacts associated with the packaging waste generated by their products. Specifically, this includes funding the program and redesigning their products and packaging to be less wasteful, reusable, and recyclable.

Sample Language for Your Bill

Copy and paste the following language into SECTION 2 of the bill template.

Copy and Paste

1. This act established a Packaging Reduction and Recycling Program, by which producers must implement and finance a statewide program for packaging in accordance with this act that encourages redesign to reduce the environmental impacts and human health impacts and that reduces the generation of packaging waste through waste reduction, reuse, recycling, and by providing for the collecting, transportation, and processing of packaging materials for reuse and recycling.

Section 3: Exemptions for Small Producers

Not all producers should be subject to the requirements of the law. Especially small businesses and companies whose products don’t generate a lot of single-use packaging. That’s why all Packaging Reduction and Recycling Laws contain a section that exempts these businesses from the requirements of the law. Generally, these exemptions apply to companies that (1) make under a certain amount of revenue each year, and/or (2) whose products only generate a small amount of packaging waste.

Maine exempts producers that generate less than $2,000,000 in gross revenue annually, as well as producers that utilize less than 15 tons of packaging material for all their products annually. Colorado exempts producers that generate less than $5,000,000 in gross revenue annually, and those that utilize less than one ton of packaging for all their products annually. California only exempts producers that generate less than $1,000,000 in gross revenue annually.

We recommend exempting businesses that generate less than $1,000,000 in total gross revenue, or that utilize less than one ton of packaging material for all their products. Feel free to adjust these targets to fit the needs and political realities of your state.

Sample Language for Your Bill

Copy and paste the following into SECTION 3 of the bill template. Adjust the amount of gross revenue and packaging requirements as needed.

Copy and Paste

1. A producer is exempt from the requirements of this act in any calendar year in which:
   1. The producer realized less than $1,000,000 in total gross revenue during the prior calendar year; or
   2. The producer sold, offered for sale, or distributed for sale, products contained, protected, delivered, presented, or distributed in or using less than one ton of packaging material in total during the prior calendar year.
2. A producer claiming an exemption pursuant to this section shall provide the Department with sufficient information to demonstrate that the claimant is eligible for an exemption.

Section 4: Establishment of the Producer Responsibility Organization

The Producer Responsibility Organization (PRO), sometimes known as the Stewardship Organization, is an important component of all Packaging Reduction and Recycling Laws. PROs are either formed by the producers or selected by the state environmental agency to run the program. However, the scope of their authority and responsibilities can vary significantly and is hotly debated.

Proponents for a program with strong oversight by the state environmental agency and limited authority by the PRO argue that this framework makes the program more effective. They point out that you wouldn’t put the tobacco industry in charge of a program to implement an effective anti-smoking effort. Likewise, we shouldn’t allow consumer brands to run programs designed to address the waste they create.

Supporters of a PRO with broad authority and limited agency oversight assert that if you want to hold companies responsible for the waste associated with their products, you need to give them full control over the program designed to address the problem. Some of the strongest supporters include the plastic industry and companies that utilize lots of single-use packaging.

Regardless of the approach that works best for your state, the sample language we’ve developed ensures a proper system of check-and-balances to keep the Producer Responsibility Organization sufficiently managed.

Review the following options and choose one to use in your bill.

Section 5: Responsibilities of Producers

This section explains what is required of individual producers to make sure they are complying with the requirements of the law and providing the information necessary for the Producer Responsibility Organization (PRO) and state environmental agency to administer and enforce the law. This includes prohibiting producers from selling products that use covered packaging materials unless they’re registered with the PRO and in compliance with this law. Additionally, it specifies the annual reporting requirements for producers.

Sample Language for Your Bill

Copy and paste the following into SECTION 5 of the bill template.

Copy and Paste

1. This section explains what is required of individual producers to make sure they are complying with the requirements of the law and providing the information necessary for the Producer Responsibility Organization (PRO) and state environmental agency to administer and enforce the law. This includes prohibiting producers from selling products that use covered packaging materials into the state unless they’re registered with the PRO and in compliance with this law. Additionally, it specifies the annual reporting requirements for producers.
   1. Registered with the Producer Responsibility Organization; and
   2. In full compliance with all requirements of this Act.
2. A producer shall annually report to the Producer Responsibility Organization:
   1. The total amount, by unit and weight, of each type of packaging material sold, offered for sale, or distributed for sale into the state by the producer in the prior calendar year; and
   2. All information necessary for the producer and the Producer Responsibility Organization to meet its obligations required under this Act.
3. A producer shall annually submit a written statement signed by the chief officer, verifying the producer’s compliance with the performance standards established in Section 13 of this Act.  

Section 6: Packaging Reduction and Recycling Plans  

Regardless of how the Producer Responsibility Organization (PRO) is established, the PRO will need to develop a plan that shows how it will implement and carryout the requirements of the law.

Once the PRO is set up, it must develop a plan that outlines the activities it will take to carry out the requirements of the law. Your state environmental agency will then review the plan and determine if it complies with the requirements of the law. The strongest programs also allow the public to weigh in on the plan through a “comment period.” 

Sample Language for Your Bill

Copy and paste the following into SECTION 6 of the bill template.  

Copy and Paste

1. One year after the development of the Producer Responsibility Organization in accordance with the provisions of Section 4 of this Act, and every five years thereafter, the Producer Responsibility Organization must submit a packaging reduction and recycling plan to the Department that describes the proposed operation by the organization of the programs and activities necessary to fulfill the requirements of this act and that incorporates the findings and results of the needs assessment. Once approved, the packaging reduction and recycling plan shall remain in effect for five years, as amended, or until a subsequent plan is approved.
2. A draft packaging reduction and recycling plan must include, at a minimum:
   1. A process for registering all producers;
   2. A process for collecting and compiling data from producers to comply with the reporting requirements established in Section 5 of this Act;
   3. A description of the processes used to calculate the registration fee, and collect each individual producer’s portion of the registration fee as required by Section 10 of this Act;
   4. A description of the processes used to collect each individual producer’s packaging management fee as required by Section 12 of this Act;
   5. A process to distribute funds to local governments and private companies for the costs associated with the collecting, transporting, and managing packaging waste as required by Section 12 of this Act;  
   6. A description of the process used to review applications for investments in packaging reduction and recycling as required by Section 11 of this Act;
   7. A description of the methods used to offer technical support to participating producers, including small businesses, to assist them with compliance with the requirements of this Act;
   8. A description of how, for each covered material type, the Producer Responsibility Organization will work with the Department to measure waste reduction and recycling rates as required by Section 8 of this Act;
   9. A description of how, the Producer Responsibility Organization will work with the Department to perform an annual review to determine which packaging material types are recyclable;
   10. An explanation of how the fee systems designed by the Producer Responsibility Organization will fund the program without any new or additional consumer-facing fees to members of the public, businesses, service providers, the state, or any political subdivision thereof, or any other person who is not a producer, unless the fee is:
       1. A deposit made in connection with a product’s refill, reuse, or recycling that can be redeemed by a consumer; or
       2. a charge for service by a service provider.
   11. A description of how the Producer Responsibility Organization will increase public awareness, educate, and complete outreach activities that include culturally responsive materials and methods and evaluate the efficacy of these efforts;
   12. Strategies to incorporate findings from any relevant studies required by the legislature.
3. The Department must review and approve, deny, or request additional information for a draft packaging reduction and recycling plan or draft plan amendment no later than 120 days after the date the Department receives it from the Producer Responsibility Organization. The Department must post the draft plan or draft plan amendment on the Department’s website and allow public comment for no less than 45 days before approving, denying, or requesting additional information on the draft plan or draft amendment.
4.  If the Department denies or requests additional information for a draft plan or draft amendment, the Department must provide the Producer Responsibility Organization with the reasons, in writing, that the plan or plan amendments does not meet the requirements of this Section. The Producer Responsibility Organization has 60 days from the date of that rejection or request for additional information is received to submit to the Department any additional information necessary for the approval of the draft plan or draft amendment. The commissioner must review and approve or disapprove the revised draft plan or draft amendment no later than 60 days after the Department receives it.
5. A producer responsibility organization may resubmit a draft plan or draft amendment to the Department on not more than two occasions. If after the second resubmission, the Department determines that the draft plan or draft amendment does not meet the plan requirements of this act, the Department must modify the draft plan or draft amendment as necessary for it to meet the requirements of this act and approve it.

Section 7: Producer Responsibility Organization Annual Reporting  

Each year, the Producer Responsibility Organization (PRO) must submit a report to your state environmental agency. This reporting requirement makes sure the program is operating effectively, and the PRO and individual producers are making any changes necessary to comply with the requirements of the law and Plan.

Every Packaging Reduction and Recycling Law has annual reporting requirements. The sample language below is designed to make sure your state environmental agency has all the necessary information to track progress, measure compliance, and implement and enforce the law.

Sample Language for Your Bill

Copy and paste the following into SECTION 7 of the bill template.  

Copy and Paste

1. Annually, the Producer Responsibility Organization shall register and submit a report to the Department that, at a minimum, must include the following information:
   1. Contact information for the Packaging Reduction Organization;
   2. A list of all participating producers, brand(s), and products identified by the Universal Product Code (UPC) that the producer sells, offers for sale, or distributes into the state that are contained, protected, delivered, presented, or distributed in or using packaging;
   3. The total amount, by both weight and number of units of each type of packaging material used to contain, protect, handle, deliver, transport, distribute, or present products sold, offered for sale, or distributed into the state by each individual producer during the prior calendar year;
   4. The total amount, by both weight and number of units, of each type of packaging material used to contain, protect, handle, deliver, transport, distribute, or present products sold, offered for sale, or distributed into the state by all producers during the prior calendar year;
   5. A complete accounting of all payments made to and by the Producer Responsibility Organization during the prior calendar year;
   6. A list of producers believed to be out of compliance with the requirements of this Act, and the reason the Producer Responsibility Organization believes the producer to be out of compliance. Information on non-compliant companies shall be provided to the State Attorney General’s Office in a timely fashion and for possible enforcement action by that office;
   7. A description of the educational and outreach efforts made by the Producer Responsibility Organization in the prior calendar year, and how those efforts were designed to reduce packaging waste, and increase reuse and recycling of packaging materials;
   8. An assessment of whether the fee structure adopted pursuant to Section 12 of this Act has been effective in incentivizing improvements to the design of packaging material, including actual reduction of packaging, increases in reusable and refillable packaging, recycling rates for packaging materials, and decreases in the amount of packaging;
   9. A description of the reimbursements and expenditures made to local government and service providers pursuant to Section 12 of this Act;
   10. A description of the expenditures made from the Packaging Reduction and Recycling Fund; and
   11. Any additional information required by the Department.

Section 8: Responsibilities of the Department

This section outlines what your state environmental agency is responsible for. The policy decisions you make in the other sections may add additional requirements for the agency. Don’t worry, those don’t need to be repeated here. This section simply includes the basic requirements the agency is responsible for regardless of the decisions you make in other sections.

Sample Language for Your Bill

Copy and paste the following into SECTION 8 of the bill template.  

Copy and Paste

1. Beginning one year after the approval of the Producer Responsibility Organization pursuant to Section 4 of this Act, and annually thereafter, the Department shall work with the Producer Responsibility Organization to:
   1. Calculate the amount of packaging that was generated during the prior calendar year;
   2. Calculate the recycling rate for all packaging during the prior calendar year;
   3. Calculate the recycling rate for each packaging material type during the prior calendar year;
   4. Develop a list of material that are considered recyclable in the state; and
   5. Develop a list of producers believed to be out of compliance with the requirements of this Act.
2. The Department shall conduct an annual audit of the packaging reduction and recycling program, including, but not limited to:
   1. The amount of money collected;
   2. The amount of money sent to reimburse local government and service providers;
   3. The amount of money used to invest in reduction, recycling, and reuse programs and services by the Producer Responsibility Organization and any state offices;
   4. The amount of discarded packaging generated, reduced, reused, and recycled; and
   5. any recommendations for the improvement of the program.
3. In the event the Department determines that the Producer Responsibility Organization no longer meets the requirements of this Act, or fails to implement or administer the requirements of this Act in a manner that effectuates the purpose of this Act, the Department shall revoke the approval of the Producer Responsibility Organization, and shall select a new Packaging Reduction Organization to replace it, or, in the alternative, may elect to operate the program itself.

Section 9: Statewide Packaging Reduction, Reuse, and Recycling Needs Assessment

Most states do not have good information about how much packaging waste they’re trying to manage, how much of it is recycled, what types of materials are recyclable, and where this material ultimately is ending up. This information is critical to understanding how your state is currently handling all this packaging waste, and where improvements need to be made to reduce waste, invest in reuse and refill programs, and improve recycling.

This section requires someone (either your state environmental agency, an independent contractor, or the Producer Responsibility Organization) to conduct a comprehensive statewide needs assessment to compile all this important information. All existing Packaging Reduction and Recycling Laws require the completion of a needs assessment. The information generated from the needs assessment will form a baseline of where your state is now and where it needs to be.

The primary policy decision in this section is determining who is responsible for performing the needs assessment. Regardless of what approach you select, the producers will be responsible for paying for the needs assessment, so it won’t cost your state any money.

Review the following options and choose one to use in your bill.

Section 10: Annual Registration Fee

This section breaks down how one of the two fees in your Packaging Reduction and Recycling Law works. This fee – called the annual registration fee – is an annual fee the Producer Responsibility Organization (PRO) collects from all its members to fund the operation of the program.

This annual registration fee ensures that companies, not your state, are financially responsible for administering the program and all the benefits it will provide. These registration fees will be used to reimburse your state environmental agency and other agencies for their work to develop, administer, and enforce this law. They will also cover the PRO’s costs for carrying out its responsibilities. Finally, the fees will also be used for the Packaging Reduction and Recycling Grant Program set up by Section 11.

Here’s how it works. Each year the PRO will be responsible for determining how much money is needed to implement the program. The PRO will then make the producers pay a portion of that amount as their annual registration fee. The fee will be different for each producer because it will be based on how much packaging waste they are responsible for compared to the total amount of packaging waste generated in the state the prior year. This way, the companies producing more packaging waste are paying more than those whose products only contribute a small portion of the overall waste.

Minnesota and Oregon both have registration fees as part of their program. Although California, Colorado, and Maine do not have registration fees, they do have standalone fees designed to reimburse state agencies for the costs incurred for oversight, administration, and enforcement of the law.  

Sample Language for Your Bill

Copy and paste the following into SECTION 10 of the bill template.  

Copy and Paste

1. Annually, the Producer Responsibility Organization shall collect a registration fee from all registered producers.
2. The registration fee must be set at an amount anticipated to in the aggregate meet, but not exceed, the estimated of the costs required to:
   1. Reimburse the Department and other state agencies for the costs associated with administering and enforcing the requirements of this Act, and its implementing regulations;
   2. Cover the costs of the Producer Responsibility Organization’s administration of the Packaging Reduction and Recycling Program; and
   3. Provide sufficient grants for packaging reduction, reuse, and recycling pursuant to Section 11 of this Act.
3. When determining the amount required from each producer to cover the cost of the registration fee, the Producer Responsibility Organization shall ensure that the amount requested from each producer is proportionate to the producers share of the total packaging waste generated in the state the prior calendar year.
4. The Producer Responsibility Organization shall deposit fees collected pursuant to this section into the Packaging Reduction Fund established in accordance with Section 11 of this Act.

Section 11: Packaging Reduction and Recycling Fund

This section explains how the money from the annual registration fee established in Section 10 will be used.

The money from the annual registration fee and any money collected by the state for any violations of the law goes into a newly created fund called the Packaging Reduction and Recycling Fund. The money from that fund will be used to reimburse your state environmental agency for the costs associated with administering and enforcing the law. It will also be used to fund the Producer Responsibility Organization’s (PRO’s) operation of the program.

All current Packaging Reduction and Recycling Laws have language that makes sure a portion of the money collected from the producers is used for these purposes. However, some programs go further than just using these funds to keep the program running. Maine’s law also requires a portion of the fees to be used for annual investments in education and infrastructure that support the recycling of packaging materials. That way money is being used to help improve your state’s system, not just keep it running. New York’s proposed bill also considers ways to use the fund to improve the state’s recycling system.

The sample language below not only includes provisions to reimburse your state environmental agency and fund the PRO’s operation of the program but it also includes language that earmarks funds for targeted investments into programs and infrastructure that will reduce packaging waste, implement reuse and refill systems, and strengthen recycling.  Here’s how it works: The PRO will accept and review grant applications and then make recommendations to your state environmental agency about what should be funded. Your state environmental agency will review the proposals, and either accept or reject them. Proposals must be designed to eliminate single-use packaging, increase reuse and refill, improve recycling, or educate consumers about how to responsibly manage packaging waste.

Sample Language for Your Bill

Copy and paste the following into SECTION 11 of the bill template.  

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1. There is hereby established, a separate, non-lapsing, interest bearing fund to be known as the Packaging Reduction and Recycling Fund which will be managed by the Producer Responsibility Organization with oversight from the Department.
2. The Producer Responsibility Organization shall deposit into the fund all payments received from producers in accordance with the requirements of Section 10 of this Act, and all penalties collected pursuant to Section 15 of this Act.
3. Beginning one year after the first payment of fees by producers pursuant to Section 10 of this Act, and annually thereafter, the Producer Responsibility Organization shall:
   1. Retain a portion of the fees deposited into the Packaging Reduction and Recycling Fund to cover the costs associated with its administration of the Packaging Reduction and Recycling Program; and
   2. Reimburse the Department, and other state agencies for the costs associated with administering and enforcing the requirements of this Act, and its implementing regulations.
4. Beginning one year after the first payment of fees by producers pursuant to Section 10 of this Act, and annually thereafter, the Producer Responsibility Organization shall make all remaining funds following the reimbursement and distributions required by subsection (c) of this section available for projects and programs that will help achieve the performance standards required by Section 13 of this act. Funds may be used for:
   1. Funds distributed pursuant to this subsection may be used for:
      1. Investments in collection systems;
      2. Transportation systems;
      3. Reuse systems;
      4. Washing systems;
      5. Redistribution system;
      6. Technology for tracking and data collection;
      7. Expenditures on new and emerging technologies focused on reusing and refilling packaging;
      8. Public outreach and education that increases access and participation in packaging reduction, reuse, refill, and recycling programs; and
      9. Equipment, facilities, and other projects determined by the Department to facilitate the goals and objectives of this Act.
   2. Any investments made pursuant to this subsection must be approved by the Department. The Department shall approve or deny proposed investments within 90 days of receipt of a proposal from the Producer Responsibility Organization. The investments may be approved, at the discretion of the Department, so long as the proposed investment will, at a minimum:
      1. Increase the transition of packaging from non-reusable to reduced, reusable, or refillable packaging;
      2. Increase access to, and capacity of, reuse and refill infrastructure and programs in the state;
      3. Increase access to, and capacity of, recycling infrastructure and programs in the state;
      4. Provide reuse, refill, and recycling instructions that are, to the extent practicable, consistent statewide, easy to understand, translated into various commonly used languages, and easily accessible; or
      5. Provide for outreach and education that are coordinated across programs or regions to avoid confusion for residents.

Section 12: Packaging Management Fee

This section breaks down the second fee included in your Packaging Reduction and Recycling Law. This fee – the packaging management fee – is designed to reimburse local governments and private waste companies for the costs associated with collecting, transporting, and managing packaging waste. This way, the companies creating the packaging waste are the ones paying for the services needed to handle it.

Here’s how it works: companies pay fees based on the amount and type of packaging they use. The fees are higher for non-recyclable packaging materials and lower for recyclable packaging materials. Additionally, the fees are often designed to incentivize companies to make changes to the ways they design and package their products. This type of fee calculation is called eco-modulation. It allows companies to lower their fees by demonstrating that they’ve worked to reduce packaging waste, increase recyclability and reuse of packaging materials, and lower toxicity and litter. Packaging Reduction and Recycling Laws in the United States utilize eco-modulated fees.  

With packaging management fees, the big question is whether to require your state environmental agency to establish the fee or leave it up to the Producer Responsibility Organization.

Review the following options and choose one to use in your bill.

Section 13: Performance Standards

This is one of the most important parts of your Packaging Reduction and Recycling Law proposal. It sets standards for packaging reduction, packaging recycling, and toxic chemical elimination that all producers must meet. This is the portion of your proposal that will require companies to change the way they design and package their products to make them less wasteful, more recyclable, and less toxic. Without these standards, your bill won’t produce the drastic changes that are necessary to eliminate and address the packaging waste crisis your state is facing.

Most Packaging Reduction and Recycling Laws only set performance standards for recycling. Some go further and include provisions for reduction, especially when it comes to plastics. Additionally, there has been a recent push in states considering Packaging Reduction and Recycling bills to include standards that ensure highly toxic chemicals that are commonly used in packaging are reduced and removed.

As always, feel free to adjust these targets to fit the needs and political realities of your state. It is important to note that the performance standards are hotly debated and often are watered down throughout the legislative process. Therefore, it usually makes sense to start out with strong, aggressive standards in your bill, knowing they may be lowered through negotiations during the legislative session. 

Review the following options and choose one to use in your bill.

Section 14: Rulemaking

As you may have noticed, the sample language we’ve included in this toolkit frequently refers to rules established by “the Department.” Packaging Reduction and Recycling Laws, and most large environmental programs, depend on state environmental agencies to create rules and regulations that help the agencies administer these complex programs.

Leaving certain elements to agency rulemaking also provides flexibility necessary to ensure the program is tailored to your state’s needs and reflects the nuances of your state’s legal system. Additionally, not every question can be answered up front in a piece of future thinking legislation. There is value in letting state environmental agencies, who are uniquely situated to understand the needs of their states, figure out how to make all the elements work together. This section does just that. It charges your state environmental agency with creating the rules that will help your Packaging Reduction and Recycling Program succeed.

Sample Language for Your Bill

Copy and paste the following into SECTION 14 of the bill template.

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1. The Department shall administer the provisions of this act and may promulgate rules as necessary to implement, administer and enforce this act. All rules developed under this act shall be promulgated no later than one year after the effective date of this act.
2. The department shall solicit input from the public of any draft rules to implement this Section, solicit public comment on draft rules for a period of at least 90 days, and hold a public hearing on the draft rules.
3. The rules adopted by the Department pursuant to this Section may include:
   1. A process for collecting all necessary information to ensure producer compliance with the requirements of this act;
   2. A process for evaluating whether the Producer Responsibility Organization is in compliance with the requirements of this act;
   3. A process for evaluating whether an individual producer is in compliance with the requirements of this act;
   4. A process for assessing the performance of the Packaging Reduction and Recycling Program and the Producer Responsibility Organization;
   5. A process for performing audits of the Producer Responsibility Organization;
   6. A process for establishing and enforcing penalties for all violations of the requirements of this act;
   7. A process for determining on an annual basis the types of packaging material that are recyclable;
   8. A process for establishing and enforcing penalties for all violations of the requirements of this Act;
   9. A process for how the department will oversee and manage the Packaging Reduction Fund, including a process for submitting, reviewing, and approving proposals from the Producer Responsibility Organization regarding investments in projects and programs that will help achieve the performance standards established pursuant to section 13 of this Act; and
   10. A process for determining whether information is proprietary information and therefore must be handled as confidential information.

Section 15: Enforcement

The requirements and standards in your Packaging Reduction and Recycling Law don’t amount to much if your state cannot enforce them. The language we’ve drafted for this section allows your state to do just that.

Sample Language for Your Bill

Copy and paste the following into SECTION 15 of the bill template.  

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1. Failure to comply with the requirements of this Act shall subject the Packaging Reduction Organization or an individual producer to penalties for violations.
2. The Department, and any other agency empowered by the requirements of this act, may conduct investigations, including inspecting operations, facilities, and record of producer and the Producer Responsibility Organization to determine whether entities are complying with the requirements of this act.
3. The Department, and any other agency empowered by the requirements of this act, may perform audits of producers and the Producer Responsibility Organization to determine whether entities are complying with the requirements of this act.
4. The Department, and any other agency empowered by the requirements of this act, shall notify the Producer Responsibility Organization and any individual producers of any conduct or practices that does not comply with the requirements of this act if any inconsistencies are identified as a result of any investigations or audits.
5. The Department, and any other agency empowered by the requirements of this act, may issue a notice of violation to, and impose an administrative civil penalty not to exceed fifty thousand dollars per day per violation to any entity not in compliance with the requirements of this act, or any rules adopted pursuant to it.
6. Any funds collected under this Section shall be deposited into the Packaging Reduction Fund.

Section 16: Establishment of the Office of Inspector General (Optional)

Include this section if you want to establish a new, independent office and position within your state environmental agency.

This is an oversight division aimed at preventing inefficient operation of the new program. The Office of Inspector General is responsible for evaluating the Packaging Reduction and Recycling Program on an annual basis to ensure it is functioning properly. This Office is also empowered to monitor producer compliance with the requirements of the law.

Given how complex this program is, including this provision can provide another layer of protection to ensure companies are complying with the requirements of the law. Several states already have various similar oversight divisions and therefore are familiar with this concept. However, this isn’t very common.

Sample Language for Your Bill

If you would like to include this section in your bill, copy and paste the following below the language you inserted into SECTION 16 in the bill template.

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1. The Department shall establish a standalone independent Office of Inspector General within the Department. The Office of Inspector General shall evaluate the programs created by this Act on an annual basis to ensure it is properly functioning, and the producers are in compliance with the requirements of this Act.
2. The Office of Inspector General shall have the authority to investigate the compliance of producers with all provisions of this Act and to bring enforcement violations against non-compliant producers.