Extended Producer Responsibility Laws Are Here: What Manufacturers Must Do Now to Assess Applicability and Compliance Risk

A cutting‑edge experiment in recycling policy is now unfolding in multiple states across the country: Extended Producer Responsibility (EPR) Laws. EPR laws are designed to shift the cost of recycling and waste management from consumers to the regulated industry. What started as a regional push for packaging reform is rapidly becoming a nationwide compliance reality, as EPR programs move into full implementation and set expectations for producers in every industry that sell into these states. 

Companies that do not have a concrete, enterprise-wide plan for compliance will find themselves increasingly at enforcement risk. Further, compliance with statutory EPR schemes is not something that can be pulled together overnight. Rather, EPR laws require extensive product packaging diligence, coordination with suppliers and e-commerce vendors, and advice from legal counsel. 

What EPR Laws Do 

• Shift the costs of recycling/waste management programs of consumer product packaging materials from taxpayers to “producers.” EPR laws require entities deemed “producers” (often the brand owner/importer) to fund recycling and/or disposal of a wide array of packaging material for consumer products. This is done by requiring producers to join a Producer Responsibility Organization (PRO) and to pay annual fees based on the amount of covered packaging material sold into each state with an EPR law.  
• Create a multi-state patchwork of laws with real enforcement teeth. There are currently seven states with EPR laws: CA, CO, ME, MD, MN, OR, and WA. Each state has its own definition for covered materials, thresholds, exemptions, and timelines – each of which requires legal analysis to determine applicability. But all EPR laws share the same basic model: mandatory participation, detailed data reporting, and steep penalties for non-compliance (Oregon, for example, allows for civil penalties up to $25,000 per day per violation).
• Establish a fee formula that is tied to packaging design (eco-modulation). Fee schedules for the various states vary based on recyclability, recycled content, and other design attributes, but the key point is that the fee formulas penalize hard-to-recycle packaging and favor recycled or recyclable content, with the goal of pushing the industry toward sustainable packaging.

Why EPR Laws Matter Now 

• Binding deadlines have arrived, including fee assessments. Earlier this summer, Oregon’s EPR law became the first program to send out fee assessments to producers registered with the PRO. In other states, producer registration deadlines have either passed already or are pending, and further fee payment obligations will follow in 2026 and 2027.
• Packaging fees may be a material P&L line item. After Oregon sent out its path-breaking fee assessments, the general industry consensus was that the fees were higher than anticipated. Regulated entities should expect the costs to go up even higher in future. The PRO that administers all of the EPR Laws has already warned producers that they should not expect early fee schedules to be indicative of FY 2026 or 2027 program administration costs; rather, fees are expected to increase significantly.
• Non-compliance carries real legal and commercial risks. As things stand now, the PRO (and state enforcement agencies) are still mainly in “carrot” mode, and are excusing late registration/reporting on the part of covered producers. At some point, and likely as more fee deadlines come into force, agencies will switch to “stick” mode by heavily penalizing one or more non-compliant entities to set an example. Companies should anticipate increased risks for delaying the preparation of a comprehensive compliance strategy.
• Packaging and supply chain structures may need reassessment and reinvention. EPR laws look beyond who physically manufactures the product packaging. Brand owners, private-label retailers, and importers can all be held responsible for compliance, and some laws treat the entity placing the packaged product into the state’s stream of commerce as the default producer, even if upstream suppliers manufacture and supply the packaging. That means existing supply-chain structures, OEM relationships, and private-label arrangements may not align with who actually bears the EPR obligations or controls the packaging design or formulation. 

Why EPR Laws May Be Vulnerable to Legal Challenges 

EPR fee structures may be vulnerable to legal challenges now and as programs mature. Mandatory producer fees are calculated and assessed by private Producer Responsibility Organizations rather than regulators, yet are enforceable by state agencies. As fee amounts grow and enforcement posture hardens, this hybrid public-private structure has already and will continue to invite challenges based on administrative-law, due-process, and improper-delegation legal theories, particularly where producers lack meaningful appeal rights. Potential avenues for challenge could include: 

• Early fee assessments rely on untested methodologies and imperfect data.
  First-generation EPR invoices necessarily reflect assumptions, defaults, and evolving eco-modulation criteria. For some producers, these choices can materially inflate assessed fees, creating opportunities for company-specific disputes or broader challenges to how fees are calculated and allocated.
• Limited transparency and review mechanisms increase dispute risk.
  Unlike traditional agency-assessed fees, EPR producer assessments often fall outside established administrative appeal frameworks. As fees become a material P&L item, the absence of clear, neutral review pathways may become a focal point for legal and commercial disputes.
• U.S. EPR programs depart from European and Canadian models in key legal safeguards.
  EPR regimes in Europe and Canada have generally survived legal challenge in part because they provide clearer regulatory oversight and access to judicial review. U.S. programs are developing along a more privatized administrative model, which may prove more vulnerable as enforcement actions and fee disputes increase.

In any case, it is clear that early enforcement actions will likely shape future program design. Because U.S. EPR laws are still in their infancy, early disputes and challenges, formal or informal, are likely to influence how regulators, PROs, and courts view fee authority, enforcement limits, and producer rights going forward.

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Foley & Lardner advises a broad range of manufacturing and consumer‑facing clients on EPR issues across regulatory, litigation, and business‑strategy fronts. Our team has extensive experience creating enterprise-wide EPR compliance plans, including best practices for determining applicable producer obligations, obtaining voluminous data across national and international supply chains, formulating reporting strategies, and developing company-integrated solutions for continued compliance. We have also worked with our clients to develop creative strategies for challenging producer fee assessments in the absence of clear guidance from regulatory agencies and producer responsibility organizations. 

Reach out to speak with a Foley attorney regarding all things EPR laws.