There is consternation among some industries that extended producer responsibility (EPR) programs for packaging in the United States include business-to-business (B2B) packaging – and thus may compromise the specialized reuse and recycling programs already in place for certain commercial and industrial packaging. All of the seven EPR packaging programs in the U.S.[1] include secondary and tertiary packaging used in B2B transactions to some extent; however, each state recognizes, in different ways, the unique features of end-of-life management of B2B packaging.
Colorado excludes most B2B packaging from its program. Colorado expressly excludes packaging used “solely in business-to-business transactions” where a covered material is not intended to be distributed to the “end consumer” and also excludes materials for transportation or distribution to “non-consumers.” Consumers are defined as covered entities, which do not include industrial and manufacturing facilities. Colorado’s definition of covered materials also excludes materials used only in industrial and manufacturing processes.
Oregon's EPR program does not call out B2B packaging for exclusion from the program as does Colorado but it does exempt: (i) specialty packaging used exclusively in industrial or manufacturing processes; and (ii) rigid pallets. In addition, Oregon exempts materials recycled outside of its “opportunity to recycle” system for curb-side pickup provided the materials are sent to a responsible end market – which could include some of the B2B packaging already handled by established commercial recycling programs that may already achieve high recycling rates.
California's approach is more expansive than some other states. It does not, as does Oregon and Colorado, exempt materials used in an industrial or manufacturing process – nor, as does Oregon, does California exempt rigid pallets. As with Oregon, however, there is an available exemption for materials collected outside the curb-side recycling system where materials are sent to a responsible end market – but only if ambitious recycling rates are met (65% until 2027, 70% after 2027), which some B2B recycling programs will be unable to meet.
The most recent version of California’s draft regulations offer industry some relief, albeit limited, from the burdens associated with the inclusion of B2B packaging. First, it excludes empty or unused packaging – clarifying that the packaging is only regulated when it is used for a good.
Second, the most recent proposed regulations relaxes the requirements for “reuse” and “refull” and expressly notes that B2B packaging is eligible for reuse and refill. Materials that are reused and refilled are not considered covered materials under the program. Prior versions of the regulations had adopted definitions of “reuse” and “refill,” which would essentially have been almost impossible to meet. Under the proposed regulations, to be considered reused or refilled the packaging or food service ware items “must be utilized multiple times by consumers for the same good without being recovered from the consumers or returned into the supply chain.”
The proposed definition of a “consumer” includes B2B packaging (the end user is the last person in the supply chain to use the material). By limiting reuse and refill to multiple uses “for the same good,” however, some of the programs for industrial packaging that recycle them into different materials (e.g., bulk containers that are refurbished for other uses) would not satisfy eligibility criteria for reuse or refill.
Under California’s proposed regulations, producers will have only thirty (30) days to register and report supply data after the regulations are adopted – likely at the start of next year. In light of these tight timeframes, we encourage businesses to evaluate their producer status and producer obligations for specific sales pathways over the next few months and begin a plan for compliance.
EPR Group Consulting can assist you with its EPR Solution Package, which includes a Producer and Packaging Evaluation, a Producer Obligation Matrix (which identifies specific sales pathways for which your company is obligated and not obligated), a brief Compliance Plan that flags your short-term and long-term responsibilities, and a Compliance Timeline with applicable deadlines for registration and reporting data.
[1] Maine, Oregon, Colorado, California, Minnesota, Maryland and Washington have all adopted EPR packaging programs; however, the Colorado, California, and Oregon programs are first in line for implementation (Oregon was fully implemented on July 1, 2025) with most of the other programs still in preliminary planning stages (or, as in the case with Maine, recently adopted amendments to their program).
