Companies who may qualify as “producers” under the EPR packaging programs[1] adopted by California, Oregon, and Colorado should plan for sufficient lead time to evaluate their status as a producer before applicable requirements apply, including program registration and membership/participation with the producer responsibility organization (“PRO”) in each state. Ultimately, similar evaluations should be made for the other two states with EPR packaging programs – Maine and Minnesota, although more imminent timeframes are at play in California, Oregon, and Colorado.[2]
Colorado and California have already selected Circular Action Alliance (“CAA”) as the PRO – and CAA is preparing to serve as the PRO in Oregon (as the only applicant to submit an application/program plan for the PRO position in Oregon). CAA is already calling for producers in California, Colorado, and Oregon to register with CAA. CAA Website.
Each state has different requirements for registration and/or program participation/membership and different applicable dates for compliance. The most immediate requirement is a Colorado requirement under newly adopted regulations under which producers in Colorado must register with the PRO by October 1, 2024.
Meanwhile, producers must participate in the program by July 1 2025 in Oregon and Colorado and by January 1, 2027 in California by either joining the PRO or complying on an individual basis where eligible.[3]
While there are similarities under each of the state programs, there are also significant differences – particularly as to the scope of materials covered, the definition of a producer, applicable exclusions or exemptions, and the allocation of responsibility among different parties in the supply chain. Moreover, proposed regulations in each state introduce significant new concepts that would clarify and/or expand the scope of the state program.
In many cases, evaluation of producer status will involve the collection and evaluation of data from different corporate departments and/or from multiple corporate entities, evaluation of e-commerce transactions and arrangements, and close review of applicable requirements and proposed regulations under each state program.
To prepare for compliance, companies should evaluate their status as a producer. This process will assist companies in making decisions about registration and program participation – and with future important steps such as analyzing product-specific producer obligations and fees.
[1] For convenience we refer to these programs as packaging programs although some of the programs cover paper, writing paper, and food service ware.
[2] EPR Group Consulting, Inc., a multidisciplinary consulting firm founded by EGC’s principal, provides Preliminary Producer Evaluation Reports for companies under the three state programs and expects to offer similar services for Maine and Minnesota in the near future. EPR Group Website.
[3] Colo. Rev. Stat. §25-17-708(1); Or. Rev. Stat. §459A.869 (Section 60 added in 2021) ; Cal. Pub. Res. Code § 42015(b)(1).
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