Extended EPR may point directly at packaging

By Eric F. Greenberg, Attorney-at-law

May 2019

For those tracking environment-related laws affecting packaging, it’s getting harder to know where to look.

Nowadays, environmental activists and state and local legislators are paying more attention to packaging. They are paying more attention to the ‘chemicals’ in packaging. Some of their actions and suggestions are aimed at limiting or banning single-use plastics or specific items such as straws. Others are suggesting the imposition of extended producer responsibility (EPR) for packaging. The likelihood is high that coming years will see some jurisdictions adding significant new environmental requirements to packaging.

EPR isn’t a new idea, and it can take many forms, but the key fact is that it places responsibility-can we say ‘burdens’ instead?-on packaging users or makers to account for the packaging’s disposition once it’s done being used by consumers. The concept, as described by the California Product Stewardship Council, a blend of local governments, NGOs, businesses and individuals, is one in which “producers share in the responsibility for managing problem products at their end of life.” The group’s vision is that “Producers have the primary responsibility to establish, fund, and manage end-of-life systems for their products with State governments setting the performance goals and ensuring accountability and transparency.”

There were 41 EPR-related bills proposed in various U.S. states in 2018, according to AMERIPEN, The American Institute for Packaging and the Environment, which represents “the North American packaging value chain by providing public policy makers with fact-based, material neutral, scientific information” on environmental issues.

EPR programs have been implemented or considered for other kinds of products in different jurisdictions, such as, in California, for carpet, mattresses, paint, and pharmaceuticals and sharps. California officials have specifically looked at EPR for packaging but so far it hasn’t been implemented.

Did you notice how the California group used the phrase “problem product?” Please, let’s not concede in public debates that packaging is a problem product.

The perennial problem of packaging is that it’s misunderstood as only waste, with little appreciation for its many efficiencies and benefits. Packaging’s image problem has been around for decades, and it’s difficult to overcome it, especially in light of the fact that post-consumer packaging is a large fraction of municipal solid waste.

Probably because consumers only see consumer product packaging at the end of its life, they rarely if ever appreciate its benefits for product safety, transportation, communication and quality. If there was more appreciation for the many societal benefits of packaging, you gotta believe there would be more public willingness on the part of citizens, states, and municipalities to accept that disposition at the end of its life is a valid public responsibility.

Politicians and advocates will often suggest privatizing government functions of various kinds, and it has been done in different realms. EPR is, essentially, privatization of government functions related to solid waste. EPR would make disposal of packaging or diversion of it from the waste stream the responsibility of the industry, not the local government, as it was traditionally. Instead of the traditional approach to privatizing government functions, however, such as when the operation of a prison is contracted out to a company instead of the government, or a company takes over the placement and collection of funds from parking meters in Chicago (don’t get me started!), this kind of privatization puts the burden on the originator of the product, usually resulting in organization by the industry broadly to create programs to divert materials from the waste stream through recycling, for example.

Whereas a couple of decades ago, state laws proliferated requiring consumer product packaging to be either recycled, recyclable, source-reduced or biodegradable, and those laws placed burdens on packaging makers and users of course. EPR is conceptually a step beyond those laws.

The growing pressure to consider EPR in the U.S. could well be inspired by the experiences of other nations. In recent years, EPR laws in the provinces of Canada have included packaging, and packaging EPR has proliferated in European Union member countries. According the EUROPEN, the European Organization for Packaging and the Environment, “25 EU Member States [countries] have implemented EPR in national packaging waste policies.” The EU’s Packaging and Packaging Waste Directive called for member countries to “set up ‘systems’ for the return and/or collection and reuse or recovery, including recycling, or used packaging from the consumer or other final user….” Fees paid by producers or importers for “the packaging that they place on the national market” funds the programs, explains EUROPEN.

If this current groundswell continues, packaging companies will need to expend a great deal of effort to track, resist or comply with new and different requirements. Because consideration of EPR measures is usually a matter of state law, keeping tabs on current developments means keeping one’s eyes open in all directions. PW

Eric Greenberg can be reached at [email protected]. Or visit his firm’s Web site at www.ericfgreenbergpc.com.


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GRAS Goes to Congress

GRAS Goes to Congress

By Eric F. Greenberg, Attorney-at-law

Remember that whole business involving NGOs and other folks objecting to the legal system that allows companies to self-determine that their uses of substances are Generally Recognized As Safe (“GRAS”)? And remember how some groups had gone to court to get the system declared unlawful, but late last year the court ruled against them? Well, there’s a new chapter to this story. Now, some members of Congress have proposed a bill that would make changes to the law to address those very same objections.

The GRAS pathway to clearance of the use of substances in packaging and in food is crucially important, and this proposed law has the potential to make enormous changes in various legal obligations. For that reason, packagers should keep a close eye on this latest chapter in the ongoing debate over the policy issues surrounding the GRAS system.

In my view, addressing the complaints we’ve heard for years about the GRAS program required changes in the law, so at least the objectors are in the correct forum. There’s been so much criticism of the Food and Drug Administration lately, what with its slow reaction to the infant formula contamination problem, on top of its handling of issues relating to heavy metals in baby food and various complaints about its handling of COVID and other drug approvals, for some examples. But when it comes to the GRAS program, it’s always seemed that most of the objectors’ objections were better directed at Congress than at FDA.

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