Complex, Ambitious Bill Before R.I. Legislature Would Require Producers to Pay for Disposal of Their Packaging
The principle is that producers of goods must be responsible for managing the packaging through its entire life cycle.
May 4, 2022
PROVIDENCE — From classroom wastepaper baskets to carry-in/carry-out rules at public parks, and through hundreds of other examples, we are taught and expected to clean up after ourselves.
Under a bill before the General Assembly, that lesson would be taught — with help from carrot and stick — to all producers of every imaginable type of good that is created, shipped into, and sold in Rhode Island.
The bill would create a system called extended producer responsibility (EPR) and it would apply to packaging of all goods sold in the state — food, toys, electronics, clothing, appliances, housewares, all the stuff that arrives from Amazon, and more.
The principle of EPR is that producers of goods must be responsible for managing their packaging through its entire life cycle, disposal, and reuse. The EPR program would create a database of all packaging introduced into Rhode Island by all producers of all goods, and producers would pay fees for disposal of the packaging.
Producers would pay higher fees for nearly indestructible packaging — that is, plastics — and small or no fees for packaging that is recyclable or refillable and reusable. The larger goal of EPR programs is to incentivize producers to redesign their packaging to make it lighter, lesser, and, most important, recyclable or reusable.
It is a big undertaking, with lots of powerful opposition, including from the oil and petroleum industry, which has targeted the production of plastics as a major avenue for the generation of income in the coming decades.
On the surface, extended producer responsibility sounds simply audacious.
Sen. Bridget Valverde, D-East Greenwich, lead sponsor of the bill in the Senate, said, “To me, what is audacious is that we have no guardrails on the waste that is produced in this country. Manufacturers are putting trash out into the world, filling up the oceans and rivers and land, and they don’t have to answer for it. Holding producers responsible through economic means is the only thing that will incentivize them to change their behavior. This law is well worth doing.”
Arron Carroll, quality manager for Admiral Packaging in Providence, said, “The broad scope of the bill highlights the lack of understanding [of the industry]. It is a one-bill-to-bind-them-all strategy.”
Carroll noted, for instance, Styrofoam is a “bad thing for which there are reasonable alternatives.” Conversely, there is no good alternative to plastic bags used for bread, and the proposed rules could potentially put bakeries out of business. Without better insight into the industry, the bill, Carroll said, “is picking winners and losers.”
A dozen states are now working on creating and passing various versions of EPR laws. In July 2021, Maine and Oregon passed these laws, in each case after three or more years of studies, reports, opposition, negotiation, and revision. The concept has been swirling in the United States for two decades. EPR programs have been active since the 1990s in Europe; they are in place in most of the provinces of Canada.
Why is ERP needed? The single answer is: pollution; the expanded answer is pollution from plastics. And the worst plastic pollution comes from single-use plastics — shopping bags, take-out food clamshells, single-serving food containers, and the like.
The Rhode Island bill opens with the statement: “Single-use packaging has significant environmental impacts on a local and global scale, including polluting our waters, contributing to climate-damaging emissions, and creating litter.” The bill continues: “As of 2021, more than sixteen million (16,000,000) tons of plastic waste washes into the ocean each year.”
Except in the case of burning of plastic waste — itself a controversial topic — all the plastic that has ever been and will ever be produced will exist forever on the Earth. Plastic can be broken down into smaller and smaller bits, down to what is called microplastics. Plastics of all sizes wash into rivers and oceans and are ingested by fish and people, and burrow into soil, including farmland, and are ingested by farm animals and people.
Judith Enck, president of the Vermont-based nonprofit Beyond Plastics, said, “The United States is the largest producer of plastic waste in the world. In 2016 alone, it generated 42 million metric tons of plastic.” She added, “By 2050, there will likely be more plastic in the ocean than fish, by weight.”
The very production of plastics creates pollution. Further, as the energy used by buildings, vehicles, and electricity companies becomes more efficient and renewable with each passing year, the oil and gas industry will need to make more and different products to generate income. Some environmentalists say that production of plastics will be increasingly important to the fossil fuel industry’s bottom line.
“The overproduction of plastics is driven by manufacturers, not market demand,” Enck said. “As the economy moves away from reliance on fossil fuels for electricity generation and transportation, the fossil fuel industry is losing a significant portion of its market. The investment in new plastic production facilities is a hedge against this loss.”
Plastic trash takes up space. The bill states, “Rhode Island’s central landfill is projected to reach capacity by 2034. Single-use packaging makes up approximately sixteen percent (16%) of the waste buried in the landfill each year.”
Discarded packaging, including plastic and other materials, is expensive to get rid of. Sarah Nichols of Sustainable Maine — in one of two states that passed an EPR for packaging last year — said Maine taxpayers spend $16 million to $17.5 million annually to manage packaging disposal.
The nationwide recycling rate for plastics has flattened out at about 8.7% and has not budged in the past decade. Environmentalists are fond of warning: “We cannot recycle our way out of this.”
How does it work?
Extended producer responsibility programs are a subset of something called the circular economy. The Ellen MacArthur Foundation describes it as the opposite of our present, or linear, economy, in which we take materials from the Earth, make products from them, and eventually throw them away.
In a circular economy, all things, including packaging, are designed from the start to re-enter the economy at the end of their use. They could be shared, reused, repaired, refurbished, remanufactured, and recycled.
The MacArthur description states: “There is no waste in nature. When a leaf falls from a tree it feeds the forest. For billions of years, natural systems have regenerated themselves. Waste is a human invention.”
Rhode Island’s EPR bill says a goal of the law would be to require producers of packaging material to make changes to their product design to reduce the use of non-reusable, non-recyclable, and toxic packaging.
Any extended producer responsibility bill for packaging is going to be complex and massive, partly because so many different materials — even under the heading of plastic — along with paper, cardboard, metals, and so on are in play.
Under the act:
The Rhode Island Department of Environmental Management (DEM) first must do an in-depth, statewide reduction, reuse, and recycling needs assessment. The DEM must issue a request for proposal to choose a nonprofit that will function as a Producer Responsibility Organization (PRO).
DEM would set fees for producers based on the weight and type of packaging waste of products they sell in Rhode Island. The highest fees would be imposed on packaging material that is not readily recyclable. There would be no fee for packaging if it is reusable or refillable. (The term for graduated fees is “eco-modulated,” and the idea can include bonuses and penalties. For example, in France, producers can earn bonuses for raising consumer awareness. Penalties are issued for materials that may make recycling more difficult.)
Certain exemptions and fee ceilings would be in place for low-volume producers, defined in the bill as those who sell products using between 1 and 15 tons of packaging in a year.
Producer-paid fees would pay for the cost of managing the entire producer responsibility system, and some of the fees would be distributed to local governments and Indigenous tribes to help them improve their waste management and recycling systems. Fees would be held in and dispersed from a packaging responsibility fund.
Producers must increase, in graduated degrees over a 10-year period, the recycled content in new packaging that they produce, up to 50% by the time the law is active for 10 years.
Every year, producers must report to the PRO the total amount of packaging material they sold in the state in the previous year, along with a considerable amount of detailed information about investments that producer made in the past year “designed to increase access to recycling and refill or reuse systems in the state” and to achieve the goals of the program. Each producer must ensure that all non-reusable packaging, across its entire brand, is recycled or incorporates post-consumer recycled material, based on a graduated schedule.
The bill requires the PRO to regularly assess how the system is operating and how well it is meeting its goals. The PRO also has to report its activities and its findings regularly to the DEM and the public.
The bill requires producers to create product labels for the market that show the percentage of post-consumer recycled material in the packaging; whether the packaging material is readily recyclable; and other information.
EPR programs also need to cooperate with many and varied local governmental waste management and recycling systems already underway.
“EPR is unscrambling the egg,” said Kevin Budris, a senior attorney with the Conservation Law Foundation and expert on producer responsibility. “We have to figure out where we went wrong and how to correct it.”
At present, Maine and Oregon have very new and yet-untested EPR for packaging laws, and about a dozen other states have bills in the works. All have their own variations and differences of emphasis.
Rhode Island’s bill is unusual, said Scott Cassel, CEO of the Product Stewardship Institute, in that most of the power and authority reside with DEM. In most other laws and bills, he said, the producers have some power and authority; it is normal for producers to manage the PROs, albeit with close oversight by the government.
The Rhode Island model, with a nonprofit PRO managing the program, “implies a distrust of industry,” Cassel said.
Also, the Rhode Island bill excludes beverage containers from the EPR program. At the same time, the General Assembly this year is considering a “bottle bill,” a deposit-and-redemption system for beverage bottles and cans. These deposit-and-redemption systems exist in 10 states, including four in New England, and are considered among the more-effective models for recycling packaging, especially when the deposit is high enough — in the area of 10 cents per bottle or can — to motivate customers to return them.
Cassel said if Rhode Island ended up with an EPR for packaging law that excludes beverage containers — as the bill is written — but does not have a bottle bill, beverage containers will, in effect, become “free riders” in recycling systems. That is, consumers would most likely continue to toss bottles and cans into curbside or other recycling bins, but producers would not have to pay for their weight, because they are not a type of packaging named in the bill.
(Some confusion arises when observers say that there are dozens of EPR programs across the United States. EPR can and does also refer to limited programs that manage the disposal of single, problematic products, like mattresses, paint, tires, batteries, florescent bulbs, carpet, and pharmaceuticals. In these single-product programs, producers have a role in disposing of the product. Producers might or might not have to pay for disposal; in some cases, customers pay the disposal fee and producers do the work. The important point is that producers are involved and it is a closed system, involving only the producer, product, and customer. And EPR for packaging is a different and much more complicated beast.)
Opposition? Oh yes.
Needless to say, EPR bills for packaging are controversial.
At a public hearing about the bill before the Senate Environment and Agriculture Committee, 11 organizations submitted testimony opposing the bill. The arguments fell along a few repeated themes.
Mostly, producers said it was irrational and unfair for the producers to be so thoroughly excluded from the PRO and the management of the whole system.
“Producers that fund the system have no authority and act as little more than a clearinghouse for state-mandated fee collection and state-approved fund disbursement,” said Bree Dietly, a spokesperson for the American Beverage Association. “Producers are reduced to the role of an ATM, not a critical partner in finding the most effective and efficient solutions.”
Some producers said the drafters of the bill simply do not understand the limitations that producers face in creating their packaging. The Consumer Healthcare Products Association said the proposed rules might conflict with federal rules on packaging of over-the-counter drugs.
“A very complex and highly regulated federal framework for OTC consumer healthcare packaging has been in place for decades,” the association wrote. “State action on packaging for these products likely conflicts with federal laws and regulations.”
The Association of Home Appliance Manufacturers said packaging of large appliances is removed at the time of delivery, taken away, and recycled in business-to-business channels that do not affect municipal recycling systems. “The variability of packaging related to institutional, commercial and industrial streams would add major complexity to manufacturer compliance requirements.”
Another argument is that some producers are already making efforts of their own to manage, reduce, and recycle their packaging. The American Forest and Paper Association pointed to its own efforts to recycle paper and said it did not want to help subsidize the end-of-life care for items like batteries, paint, mattresses, and electronics. The association wrote, “Any EPR system must fully and fairly credit the early, voluntary action our industry has taken advancing the recycling rate of our products, and strictly prohibit use of fees generated by one material to subsidize recycling infrastructure for competing materials.”
Others said markets for recycled materials are variable and might not, at any given time, support the amounts of post-consumer recycled material that producers would be required to include in new packaging.
“Increasing the amount of post-consumer content in packaging materials requires an adequate market to incentivize use of these materials,” the Association of Home Appliance Manufacturers wrote. “The current market does not support adequate supply or quality of many recycled packaging materials.”
Similarly, a representative of the Flexible Packaging Association said “Single material flexible packaging, which is approximately half of the flexible packaging waste generated, can be mechanically recycled through store drop-off programs, however, end-markets are scarce … if there are no end markets for the product, these efforts will be stranded.”
Some opponents said new rules would raise costs for consumers. Another argument was that creating new product labels just for Rhode Island would be unfair and expensive.
Carroll, at Admiral Packaging, said the Providence company produces flexible packaging — bags and pouches — for medical, food, agricultural, and industrial uses. He said for some uses there is no reasonable alternative to plastics now in use. He also said companies wish to use less packaging or more sustainable packaging.
“Economically, everyone is incentivized to use less or cheaper packaging,” Carroll said. “Our customers are keen on having us use less or sustainable packaging.” He added, “But some Rhode Island companies would be put under if they were not allowed to use” certain packaging.
“Packaging makes cheaper food prices possible,” Carroll said. “You shouldn’t have to go to a farmers market and pay three times more for produce to avoid plastic packaging.”
Nichols, of Sustainable Maine, who helped shepherd Maine’s EPR law and helped fight off an alternate bill by producers, joins many other environmentalists in dismissing these arguments from producers.
Noting, first, that “not all producers” oppose EPR laws, Nichols said complying with these laws is not a huge expense for most producers, and, furthermore, big operations such as Proctor & Gamble, for instance, are already following EPR and paying for disposal costs elsewhere, like in Canada and Europe.
She said studies in Belgium, where EPR has been active for 30 years, show EPR’s cost on producers is “under one percent of total gross revenues.” Similarly, she said, a curtain rod company in Italy used less packaging and saved big on trucking costs.
Further, Nichols said the cost of relabeling packages is insignificant. “They do this all the time.” In truth, she believes, producers “are worried about being exposed for not using packaging that is recyclable. They are more concerned with public perception and image than they are about the cost of the label.”
Nichols said meeting the requirements of EPR rules would not force companies to significantly raise their prices, an argument she called “a scare tactic.”
On the topic of having producers run the organization that polices them, Nichols said, “It is not a terrible idea for producers to [run PROs], but it is a terrible idea right out of the gate.”
Nichols said the bottom line should be: “the polluter pays.”
Valverde, the Rhode Island senator sponsoring the EPR bill, said, “Producers want to be able to continue business as usual; they don’t want to pay for the waste they are producing. It is an economic argument, and I don’t buy it. The consumers are already paying to take care of this waste. EPR will give money back to municipalities to pay for waste disposal.”
As for the topic of producers running the PROs that manage the program, Valverde said. “I do maintain some skepticism when it comes to industry policing itself.”
Martha Ainsworth, an EPR expert who is active in the Sierra Club in Maryland and has observed the efforts to pass a bill there, was more blunt. “If [producers] want to be in charge they should go ahead and do it right now, without a law to force them.”