EPR Packaging Laws Moving from Concept to Compliance

Extended producer responsibility (EPR) laws are increasingly making companies that market, distribute, and sell packaged consumer products responsible for the cost to dispose of the packaging that they place in the market. For these companies, EPR laws can mandate membership in so-called “producer responsibility organizations,” which require the payment of fees and impose significant reporting obligations. EPR laws also can carry per-violation penalties of tens of thousands of dollars.

California, Colorado, Maine, Maryland, Minnesota, Oregon, and Washington have enacted EPR statutes. Illinois, New Jersey, North Carolina, and other states are considering similar laws.

Below, we discuss how the new regimes work, which packaging materials are covered, where implementation stands, how enforcement will operate, opportunities to influence rulemaking, bases for potential legal challenges, and long‑term business implications.

EPR Packaging Laws Regulate Most Businesses that Sell Packaged Products

EPR laws shift financial responsibility for the disposal of used packaging materials from state and local governments to “producers.” That term is typically defined as someone who sells packaged products. Depending on the jurisdiction, this could encompass (1) the brand owner (or licensee) of the packaged product; (2) the manufacturer of the packaged product (or, in some instances, of the packaging itself); (3) the importer of the packaged product; and (4) the distributor or retailer of the packaged product. In addition, some states also specifically designate e-commerce platforms that package and ship products as the producer of the packaging.

Although definitions of “producer” can be complex, the idea behind them is straightforward: states seek to associate each package with exactly one in-state business, which they designate as the “producer” subject to EPR requirements. The selection of a single “producer” from all the businesses involved in the manufacture and use of packaging in the sale of consumer goods can, however, differ by state.

Given this wide variation, businesses selling packaged products should be attuned to potential EPR requirements and the implications for business decision-making. Likewise, manufacturers of packaging materials should consider the impact of EPR laws on their customers (i.e., companies that acquire packaging), including the fact that EPR laws may impact the demand for packaging and the types of packaging that customers purchase.

EPR Packaging Laws Cover Packaging in Any Shape or Form

EPR packaging laws generally cover consumer‑facing packaging—boxes, bags, containers, and the like—regardless of material. But the rules vary, both by state and with time, as regulators create and revise lists of covered materials. The technical and non-uniform nature of these definitions underscores the need for businesses to monitor EPR packaging laws (and implementing regulations) in their areas of operation.

For example, EPR regulations vary for food serviceware and different types of plastics. At present:

• California covers single‑use packaging and single‑use plastic food serviceware.
• Colorado covers packaging material intended for single or short-term use and paper products.
• Maine covers packaging material used to distribute products (including over the Internet).  
• Maryland covers packaging and paper products.
• Minnesota covers packaging (including food packaging) and paper products.
• Oregon covers packaging, printing and writing paper, and food serviceware.
• Washington covers packaging and paper products.

Still more variation lurks beneath the surface. Although EPR laws generally use the term “packaging,” different states give that term different meanings. In California, for example, packaging “means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods.”¹ In Maine, by contrast, it “means a discrete type of material, or a 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.”²

Definitions of “packaging” may come with a host of exceptions. For example, some states exempt materials used to ship prescription drugs, medical devices, infant formula, hazardous materials, and certain printed publications.

EPR Packaging Laws Require Membership in Producer Responsibility Organizations

EPR laws seek to shift the burden of paying for the disposal of packaging from state and local governments to the businesses that manufacture, use, or sell packaging or packaged products.

Under EPR laws, companies that manufacture, distribute, or sell packaged products are subject to a number of new rules, which often include joining a state‑approved producer responsibility organization (PRO), paying fees to the PRO based on the amount of packaging they use, and reporting data on that packaging by material and weight, among other things. The PRO, in turn, is responsible for creating recycling or other programs to address and remediate waste from used packaging materials.

As this description suggests, both state and private actors play a role in adopting and enforcing EPR regulations. State agencies operate at a high level, setting minimum program elements and statewide lists or performance targets, and enforce noncompliance through penalties and other sanctions. Meanwhile, private PROs like the Circular Action Alliance (CAA), which operates in multiple states, collect fees from producers and gather data on their use of packaging products. PROs then put the fees they collect toward programs designed to recycle packaging after consumers dispose of it.

EPR Packaging Laws Are Taking Effect Across the Country

Given the complexity of EPR packaging laws, states tend to roll them out over time. This process proceeds in several steps. First, a state establishes a regulatory framework (often through the state’s notice-and-comment rulemaking procedure). Next, the state selects one or more approved PROs. Finally, the state establishes deadlines for covered businesses to register with and pay fees to an approved PRO.

In addition, EPR laws frequently contain substantive requirements for packaging. These requirements are designed to ensure that packaging both can be recycled and is in fact recycled, with target recycling rates in some states (e.g., California) increasing over time.

Consistent with this framework, EPR packaging laws are beginning to take effect in a number of states. This process will accelerate through the rest of the decade:

• California: Rulemaking to implement the State’s EPR packaging law is in progress, and guidance about covered materials has been released. Producers must join a PRO by January 1, 2027, with escalating performance standards through 2032. During its first two years of operation, the PRO will determine the fee schedule for each producer based on factors like operating costs, the cost of completing a needs assessment, and the cost to reimburse the department. In the third year and each successive year of operation, each producer will pay an annual fee as established in the PRO plan.
• Colorado: Producers were required to join a PRO by July 1, 2025 to sell or distribute products. Fees are due in January of each following year.
• Maine: Final program rules were adopted in 2024. Producers will be required to register with the PRO, report initial data, and pay startup fees in 2026, with full implementation slated for 2027.
• Maryland: PRO registration and producer onboarding begins in 2026, with regulators to list covered materials by July 1, 2027, and the PRO to submit “responsibility” plans for producers by July 1, 2028. Those plans will be financed through reimbursements set to begin in 2028 and increase until reaching a maximum level in 2030.
• Minnesota: Producers will be subject to limited registration requirements in 2025-2026, with a PRO to begin operations in 2027-2028. Full implementation of the PRO’s stewardship plan will occur between 2029 and 2032, with substantive requirements for packaging and paper products to take effect in 2032.
• Oregon: Program implementation began on July 1, 2025. Producers must be registered with the PRO, report data, and pay fees.
• Washington: Producers must join the PRO in 2026, with rulemaking to proceed over the following years. Nonmembers cannot sell their products in Washington after March 2029.

Importantly, some of the phase-in dates above could be pushed back as regulators receive input from stakeholders. For example, California’s first rulemaking process (from 2024-2025) ended without the adoption of final regulations, requiring the State to revise the proposed regulations and begin the process anew.

EPR Packaging Laws Will Impact the Bottom Line

EPR laws have significant financial implications for companies that manufacture, distribute, or sell packaged products—from fees to reporting obligations to internal process modifications—and they carry the potential for substantial penalties and even packaging bans.

To start, covered businesses must pay PRO fees based on the amount of packaging they place in the stream of commerce—that is, use to package goods sold to consumers. These fees often are higher for hard‑to‑recycle materials and lower for readily recyclable, reusable, or compostable materials.

The levels of fees that PROs will charge in different states is still uncertain. However, some figures are available. The CAA’s 2026 Oregon fee schedule ranges from as little as $0 per pound (non-consumer corrugated cardboard) and $0.05 per pound (paper) to more than $1.30 per pound (certain plastic containers and foamed cushions), with most fees somewhere near the midpoint.

In light of state-by-state variation in the rules authorizing PROs to set fees, covered businesses must pay close attention to fee-setting methodologies in jurisdictions where their products are sold. Some companies may consider adjusting the makeup of packaging materials that they use to minimize compliance costs. Indeed, doing so could become a business imperative.

In Oregon, for example, businesses manufacturing, distributing, or selling packaged products face the prospect of paying approximately $100 million per year in the aggregate in PRO fees, even assuming their products are subject to low-end fees of $0.05 per pound. Every additional $0.01 per pound in fees (whether imposed through rate increases or arising from increased sales of products in hard-to-recycle packaging) would translate to another $20 million per year in total industrywide costs.³

Covered businesses also will face new obligations to record and report the volumes of packaging used in products that they sell in the applicable state, as well as the characteristics of that packaging. In order to meet these obligations, companies are required to collect and validate audit-ready data on the packaging that they use to manufacture, distribute, or sell goods in each state and the extent to which it can be recycled, reused, or composted, or otherwise satisfies state sustainability targets. Companies may need to adopt logistics systems capable of supplying this information.

Costs also may increase as businesses update their policies and procedures in accordance with new EPR requirements. Legal departments must review the evolving web of statutes and implementing regulations across different jurisdictions to ensure that their companies meet each set of requirements. The multiple layers of review in each state—including state environmental agencies and quasi-private PROs—further add to this complexity. Additional expenses could arise in working with state agencies throughout the rulemaking process to ensure that proposed regulations do not unduly burden industry. For example, during state notice-and-comment rulemaking processes, companies and industry groups might need to model the costs and benefits of proposed regulations and potential alternatives to identify methods for implementing EPR packaging laws.

Noncompliance carries the potential for significant penalties for businesses that fall under EPR laws. State environmental agencies generally have authority to enforce EPR laws, including through assessing penalties. Depending on the jurisdiction, penalties range from $1,000 for a first violation (Washington) to $100,000 per day for successive violations (Minnesota). Several states increase penalties for repeated incidents of noncompliance. Repeat noncompliance can also increase the penalty classification. In Maryland, for example, regulators may levy penalties of $5,000 and $10,000 for first and second violations, respectively, followed by civil penalties of $20,000 for subsequent violations.⁴

Finally, EPR laws often prohibit the sale of packaging (either on its own or when used to package something else) by unregistered or non-compliant businesses. In Minnesota, for example, businesses cannot “introduce” packaging into the state after January 1, 2029 absent a PRO-approved stewardship plan.⁵ Similarly, if a business violates Oregon’s PRO membership requirement, the State can “bring an action seeking to prohibit [its] sale” of packaging.⁶ Provisions like this effectively authorize regulators to obtain injunctions against the sale of packaging (or packaged goods) in violation of applicable EPR statutes, offering regulators yet another tool to enforce compliance.

Businesses Have Opportunities to Offer Input on EPR Regulations and Enforcement

The rapidly evolving EPR landscape offers ample opportunities for stakeholder input. First, the administrative rulemaking process provides regulated businesses the opportunity to inform state agencies of harmful or inefficient aspects of proposed EPR rules before they take effect. In Washington, for example, the Department of Ecology plans to begin rulemaking this year and conduct studies that will shape its PRO programs. Oregon’s Department of Environmental Quality has likewise launched a rulemaking process designed to “improve clarity, make identified corrections and provide increased consistency across the rules implementing to [sic] the Plastic Pollution and Recycling Modernization Act.”

Stakeholder input matters. For example, California’s first attempt to issue EPR rules failed, which led the state to launch a second round of rulemaking in late 2025. Businesses subject to EPR laws therefore may consider opportunities to participate in further rulemaking efforts in that State and elsewhere. Through this process, companies and industry groups can propose definitions to clarify the scope of covered packaging materials, offer input on timelines for implementation, discuss costs and benefits of possible fee calculation methodologies, harmonize data and labeling requirements, and ensure the creation of appropriate procedural guardrails. Businesses also can flag inefficiencies and other consequences of product definitions, vague fee schedules, rigid penalty regimes, and other issues.

Industry may also have other opportunities to participate in program design, implementation, and oversight outside the formal rulemaking process. States like Maryland and Minnesota, for instance, have established advisory EPR councils. These bodies solicit input from the public about the effect and operation of EPR laws as they are developed and once they are in effect. The use of advisory councils to provide feedback to regulators, such as the Maryland Department of the Environment or the Minnesota Pollution Control Agency, offers another path to shape regulatory policies and practices.

More States Are Considering Future EPR Packaging Rules

State interest in EPR packaging regimes is increasing. In fact, several states are actively considering legislation to implement EPR packaging rules. States currently considering EPR legislation include:

• Illinois: The Extended Producer Responsibility and Recycling Refund Act (HB4064) would require producers of packaging to join a PRO that funds and implements a statewide program to reduce, reuse, recycle, and compost covered materials and meet escalating performance targets, including through fee modulation designed to incentivize recyclable, reusable, and post-consumer content packaging.

• New Jersey: The Packaging and Paper Product Stewardship Act (S3398) would establish an EPR program requiring producers of packaging and paper products to join a PRO or implement their own approved plan and pay a surcharge toward recycling programs. The Act would also establish aggressive targets for recycling packaging products and create an Office of Plastics and Packaging Management to enforce these requirements.

• North Carolina: The Break Free From Plastic & Forever Chemicals Act (HB882) would establish an EPR program for certain packaging and plastics products, including creating a PRO, requiring manufacturers and distributors of packaged products to join that PRO, and enforcing through participation fees, reporting requirements, and potential penalties.

These proposals, if adopted, would add further complexity to the patchwork of state EPR laws and impose additional regulatory costs on covered companies.

Trade Associations Have Begun to Sue over EPR Packaging Laws

As states begin to enforce EPR packaging laws, some businesses and trade associations have launched legal challenges. For example, a lawsuit brought by the National Association of Wholesaler-Distributors challenging Oregon’s Plastic Pollution and Recycling Act presents a number of legal theories that, if successful, could serve as templates for challenges to other EPR laws. See Nat’l Ass’n of Wholesaler-Distribs. v. Or. Dep’t of Env’t Quality, No. 3:25-cv-01334 (D. Or.). Those theories include:

• Dormant Commerce Clause: The US Supreme Court has inferred from the Constitution’s Commerce Clause that states cannot unduly burden interstate commerce. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Under this principle (sometimes called the Dormant Commerce Clause), state laws that facially discriminate against out-of-state commerce are almost all invalid, and formally neutral laws with that effect also may be invalid, depending on the extent of the burden they impose on interstate commerce. For example, the Court in City of Philadelphia v. New Jersey, 437 U.S. 617, 628-29 (1978), held invalid a New Jersey law purporting to bar the importation of waste from other states as an attempt to “isolate [New Jersey] in the stream of interstate commerce from a problem shared by all.” To the extent EPR packaging laws disproportionately burden out-of-state commerce, they too could be subject to challenge under the Dormant Commerce Clause.
  
  That said, prior attempts to challenge other kinds of EPR laws on dormant-commerce-clause grounds have come up short. For example, VIZIO, Inc. v. Klee, 886 F.3d 249, 252 (2d Cir. 2018), affirmed the dismissal of a manufacturer’s challenge to a Connecticut law requiring financial contributions to a television recycling program. The court reasoned that the law “merely affects pricing decisions,” as opposed to out-of-state conduct, and the manufacturer failed to allege that out-of-state manufacturers faced significantly greater burdens than in-state manufacturers. Id. at 257, 259-60.

• Unconstitutional Conditions: In certain contexts, “the government may not deny a benefit to a person because he exercises a constitutional right.” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983). Yet EPR packaging laws require businesses manufacturing, distributing, or selling packaged goods to join PROs in order to continue operating, which has downsides: they must pay fees and may be required to accept other terms, including not contracting with other businesses and waiving the right to a jury trial. It could therefore be argued that EPR packaging laws violate rules barring states from coercing businesses to give up their constitutional rights.

• Due Process: States must provide fair, non-arbitrary procedures before depriving regulated entities of their liberty or property. See, e.g., Honda Motor Co. v. Oberg, 512 U.S. 415 (1994); Fuentes v. Shevin, 407 U.S. 67 (1972). In Honda, 512 U.S. at 432-45, for instance, the Supreme Court rejected Oregon’s attempt to bar judicial review of punitive damages awards, holding that the bar facilitated “arbitrary” penalties without adequate procedural safeguards. In the EPR context, delegating fee-setting and enforcement responsibilities to PROs raises questions about the extent to which regulated businesses will receive a full and fair opportunity to challenge those fees. Some PROs also require members to engage in binding arbitration to resolve disputes, raising further questions about the extent to which members will be entitled to traditional procedural safeguards.

• Private Nondelegation: The private nondelegation doctrine limits the government’s authority to hand core regulatory power over to private actors. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Nat’l Horseman’s Benevolent & Protective Ass’n v. Black, 53 F.4th 869 (5th Cir. 2022). Similar principles contained in state constitutions could place barriers on delegating authority over recycling to private entities. That poses a potential problem for EPR packaging laws conferring substantial regulatory authority—including defining schedules of covered materials, setting and collecting fees, and making value judgments about the most suitable forms of packaging—on private PROs.

In addition to the above theories being advanced in litigation, some states believe that PRO coordination of recycling practices could raise antitrust concerns. Earlier this year, the attorneys general of Florida, Iowa, Nebraska, Montana, and Texas sent letters to environmental organizations questioning whether their efforts to increase collaboration among producers violate antitrust law.⁷ To the extent states believe the collaborative efforts of environmental groups involve the adoption of coordinated rules designed to advance ideological objectives in lieu of consumer welfare, the letters raise the prospect of potential state enforcement actions against PROs or their members. Private antitrust challenges are also possible, at least to the extent that PRO rules do not reflect “clearly articulated state policy” and state agencies do not “actively supervise” the implementation of such rules. S. Motor Carriers Rate Conf., Inc. v. United States, 471 U.S. 48, 65-66 (1985).

Businesses Should Act Now to Prepare for Today’s EPR Packaging Regimes

With Oregon already enforcing EPR packaging rules and other states close behind, EPR compliance is a near‑term operational requirement and a long-term strategic imperative for companies that place covered packaging on the market, including brand owners, licensees, importers, retailers, and distributors that are deemed “producers.” Understanding the legal landscape and proactively navigating EPR regimes can preserve market access and position companies to more effectively compete.

Among other measures, regulated entities should confirm “producer” status by state and map where covered materials are manufactured, distributed, and sold; register with applicable PROs; create internal processes to collect jurisdiction-specific data on packaging attributes, material weight, recycled content, and reuse performance; and monitor legislation, rulemaking, and litigation that may affect the scope of state EPR requirements. Beyond compliance, EPR has direct business implications for pricing, product and packaging design, and supply chain governance: fee schedules and eco‑modulation can shift unit economics, and reporting obligations necessitate investments in data systems and board‑level oversight.

Early alignment of legal, sustainability, procurement, and finance functions can reduce compliance risk, lower total cost, and capture commercial advantage with more recyclable, lower‑fee packaging.

¹ Cal. Pub. Res. Code § 42041(s).

² 38 Me. Rev. Stat. § 2146(1)(I).

³ This calculation assumes a low-end fee of $0.05 per pound, that Americans consume about 82.2 million tons of packaging per year, and that Oregon consumers account for about 1.2% of that total, corresponding to the state’s share of the nation’s population.

⁴ Md. Code Ann., Env’t § 9-2512(b).

⁵ Minn. Stat. Ann. § 115A.1448, subdiv. 1(b).

⁶ Or. Rev. Stat. § 459A.962(6).

⁷ See Letter from James Uthmeier, Attorney General of Florida, et al. to Wai-Chan Chan, The Consumer Goods Forum (Oct. 29, 2025); Letter from James Uthmeier, Attorney General of Florida, et al. to Paul Nowak, GreenBlue Institute (Oct. 29, 2025).