Seven Laws in, how is Reuse Faring in U.S. Packaging EPR?
To say it has been a busy four years in the world of packaging EPR is an understatement. Seven U.S. state laws have been enacted since 2021, with Maryland and Washington entering the scene this year. And that’s not counting the needs assessments, or “prEPR” laws; the renewed momentum for modernized Deposit Return System (DRS, i.e. bottle bill or recycling refund) bills; or the related legislative pushes in many states around truth in labeling, recycled content, and more.
But amidst all this activity, one thing remains true: producers, manufacturers, policymakers, and the general public are still hyper-fixated on recycling, despite its many pitfalls and inferior status on the waste hierarchy. Solutions that require true systemic change, like the build-out and scale-up of reuse systems, are undeniably getting more attention in the packaging policy sphere, but they still risk being regarded as side issues in the absence of strong advocacy.
Why We Need Reuse in EPR—And Why It’s Hard to Get
Needless to say, systemic change is harder than perpetuating the status quo, yet it’s exactly what we need if the U.S. wants to upend its legacy as one of the most wasteful countries on the planet. And reuse systems do more than just reduce waste. Bolstering local economies and domestic supply chains, reducing litter and pollution, and creating jobs are all touted as key benefits of increased recycling, when in fact reuse systems are much better at achieving these outcomes.
Upstream advocates for the inclusion of reuse systems in packaging EPR policy because EPR is one of the most viable levers of systemic change available to us today. But the road to reuse in EPR is long and bumpy. In a policy environment heavily biased towards recycling, mentioning reuse draws sideways glances. Despite the promise of packaging EPR as a paradigm shift, provisions that would enact meaningful upstream change are frequently labeled as “ornaments on the Christmas tree” — nice, but include too many and you just weigh down the bill, for which the real focus is funneling money into recycling systems so we can keep the single-use economy functioning.
Some opposition to reuse in packaging EPR policy is more direct: certain producers who don’t currently make or use reusable packaging are reluctant (or outright refuse) to pay into a program that will fund reuse systems. “Why should we have to subsidize other types of packaging?” they gripe. These companies have not yet considered a future where they or their customers might actually convert their packaging to reusables, or imagined the many benefits of a more streamlined postconsumer packaging system that leverages interoperable infrastructure to collect empty reusables and recyclables both.
Lessons from Washington & Maryland
When it comes to packaging EPR legislation, reuse plays out in a few key sections of any bill: the program’s fee structure, including eco-modulated fees, sets the tone for whether or not reusable packaging will be incentivized and supported; performance targets, including how and where they are set, are an indicator of how seriously the program will take reuse; and overall infrastructure investments may or may not offer direct support to the expansion of reuse systems. The differences between Washington’s and Maryland’s new laws offer a telling example of how these provisions can be written to catalyze or subvert reuse, respectively.
Washington’s Vision of a Reuse Future
On the one hand, Washington’s Recycling Reform Act (RRA) is clearly angling for a future reuse economy. The statute explicitly states that reusable packaging shall pay fees only once, upon first market entry, which naturally incentivizes longer-lasting, durable reusables. In addition, the language on eco-modulated fees ensures that the overall incentive structure must drive producers toward an outcome of “increased reuse.”
The RRA also directs Washington’s Department of Ecology to set statewide performance targets for the market share of reusable packaging and the average annual return rates for reuse systems. The packaging Producer Responsibility Organization (PRO) will need to invest in reuse systems to meet these targets, but to make sure that really happens, the RRA created a Reuse Financial Assistance Fund to direct investments into the reuse sector. The Fund will open at $5 million (minimum) in 2029 and must grow if reuse targets are not met.
Upstream and our allies in Washington worked hard to protect these provisions throughout the legislative process this year. We’re thrilled to see them in the final statute and look forward to assisting with the rollout of the program. We believe the RRA has taken Washington two big steps in the right direction, setting up forward-thinking producers who are ready to explore reusables for success.
Maryland’s Light Touch
On the other hand, Maryland’s new law is light on reuse specifics. The only eco-modulated fee incentives mentioned in the statute are for recyclability, recycled content and compostability, leaving any other provisions to Maryland’s Department of Environment to consider through rulemaking (which may be a tall order given the strength of the industry lobby in the state).
The law does direct the PRO to propose reuse and return rate targets in its program plan, but there is no backstop of state-mandated performance rates set in regulations as in Washington (a provision also codified in Minnesota’s packaging EPR law). With little to no financial incentive for producers to choose reusable packaging and an opening for the PRO to propose very low targets, it’s not clear whether investments will be made into reuse systems in Maryland through its EPR program. Ultimately, it’s unlikely that the state will see reuse innovation or ambition on the part of consumer brands, who have made it clear that if left to their own devices, they will not pursue reuse.
Upstream is tracking the passage and roll-out of U.S. packaging EPR programs with a laser-focus on reuse, and we are pleased to report that reuse is gaining traction. That much is clear from the fact that even in Maryland, where advocacy on reuse was lighter, the bill defines reusable packaging and directs the PRO to set reuse targets. Maryland’s law mentions reuse several times, in fact. It simply doesn’t have sharp teeth. The more robust provisions in Washington, Minnesota, Maine, Oregon and California provide more hope — especially for Maine, Oregon and California, whose DRS programs naturally establish infrastructure and systems that benefit reusables.
The Future of Reuse in EPR
As these more reuse-focused programs launch, we believe the benefits of reusable packaging will become increasingly evident to consumer brands and PROs alike — not the least of which will be significant cost savings where the program’s fee structures properly incentivize reusables. Recent reporting from the UK, where their packaging EPR program also charges reusables only once upon market entry, estimates that producers could save roughly £136 million each year if 30% of packaging were converted to reusables. This is after accounting for the estimate that scaling to 30% reuse across packaging would require infrastructure investments of £149M per year over ten years (an amount that still only adds up to ~9% of program fees in the UK).
So how is reuse faring in U.S. packaging EPR policy so far? It’s a mixed bag — but improving. While overcoming packaging’s relentless recycling bias is an uphill climb, we are making progress. Upstream will continue to advocate for strong reuse provisions in EPR legislation, regulations, and program plans across the U.S., and we are so grateful to the organizations advocating for these outcomes alongside us. With the right fee structures, targets, and investments in place, packaging EPR policy stands to be one of the most transformational levers for catalyzing reuse at scale.
