States across the country increasingly are developing extended producer responsibility (EPR) legislation for packaging. Lawmakers in Maine and Oregon passed EPR legislation in 2021, and most recently, Colorado Gov. Jared Polis signed House Bill 22-1355 into law to establish a statewide recycling system that aims to boost recycling rates for plastic, aluminum, glass and paper in the state. Dozens of other EPR bills have been proposed in other states as well.

While only three states have passed EPR legislation for packaging to date, EPR systems for packaging have existed for more than 30 years in parts of Europe. With Europe's long history of EPR systems for packaging, Multinational consumer brand companies can provide EPR success stories that U.S. brands can learn from as more EPR bills are introduced in this country.

According to Boston-based Product Stewardship Institute (PSI), some European consumer brands have redesigned packaging to be reusable, recyclable, made with recycled content and circular in response to EPR. During a webinar titled EPR Masterclass – EPR Packaging Redesign Success Stories, PSI, along with representatives from a European institute and several consumer brands, shared a few examples of how brands have responded to EPR in Europe and what factors influenced them most to change packaging design to make it more recyclable.

Design for recycling drivers

Kennisinstituut Duurzaam Verpakken (KIDV), which is the Netherlands Institute for Sustainable Packaging, aims to reduce the environmental impact of packaging across the entire packaging value chain. The institute works with companies to provide knowledge and tools to deploy more sustainable packaging designs.

During the webinar, Karen van de Stadt, sustainable packaging expert at KIDV, shared that the institute also advises companies on EPR.

In Europe, Van de Stadt said she has seen the following four incentives drive companies to design recyclable packaging:

• plastic pacts;
• marketing and communications about sustainable actions taken;
• corporate sustainability goals; and
• eco-modulation, which is an approach by which EPR fees are informed by and structured according to environmental considerations and policy objectives in order to increase packaging recyclability and efficient use of materials.

She said plastics pacts—such as the U.S. Plastics Pact, the European Plastics Pact or the Plastics Pact Network—provide companies with goals to keep them accountable to make lasting changes to their packaging designs. She added that corporate sustainability goals as well as communication on sustainable actions companies have taken related to packaging design keep businesses accountable to follow through on packaging design plans. Additionally, she noted that eco-modulation and fees included in EPR schemes drive some businesses to change their packaging designs; however, she said it seems to be less of an influence.

Taking action

Three companies shared work they have done in Europe in response to EPR and designing their packaging for recyclability.

“EPR has been and will continue to be instrumental in organizing and making recycling operational,” said Gabriella Gabelli, director of environmental policy at PepsiCo.

PepsiCo, with global headquarters in Purchase, New York, is working toward a goal to ensure 100 percent of its packaging is recyclable, compostable, biodegradable or reusable by 2025. By 2030, the company aims to reduce the amount of virgin plastic in its nonrenewable sources per serving across its portfolio by 50 percent.

Gabelli said the company also endorsed and helped with The Consumer Goods Forum’s “Guiding Principles for the Ecomodulation of EPR Fees for Packaging” it released in February.

Although the company has had success with improving the design of its beverage packaging, Gabelli said it is a little more challenging when designing food packaging, such as its Walkers Crisps brand. She said that product line requires “serious protection” from oxygen, moisture and UV light to ensure high product quality. She said the company is working to maximize its use of polypropylene in the chip bag to yield higher quality recyclate from the product.

Feliks Bezati, global circular packaging director of McLean, Virginia-based Mars Inc., said EPR schemes are encouraging brand owners to design packaging to increase recyclability and influence recycling infrastructure.

“We have an influence through the EPR fees we pay,” he said. “We also have an influence when it comes to recycling industry. The more we use recycled material, the more we create demand for it. That’s why a few of us [brands] already have committed to use recycled materials.”

Bezati noted that Mars has a commitment to use 30 percent recycled material in its packaging by 2025. He added that the company wants to transform its portfolio to feature mostly monomaterial packaging in the future as well as a way to increase recyclability.

Additionally, some companies, such as Cincinnati-based Procter & Gamble, are transitioning from virgin plastic to paper packaging or packaging that includes postconsumer resin in response to plastic taxes in some European countries.

“If there is a plastic tax, you may compensate that by using recycled material or completely changing your material,” said Jürgen Dornheim, director of corporate packaging innovation and sustainability at Procter & Gamble. He said Procter & Gamble has transitioned from using low-density polyethylene packaging for some of its Always menstrual hygiene products to paper packaging as an example.

He concluded that packaging design changes need to be made by top-level brand managers. “Change starts with the decision-making process,” Dornheim said. “Top management has to make this decision.”

WM (formerly Waste Management Inc.), Houston, faces a potential class-action lawsuit filed by Robbins Geller Rudman & Dowd LLP on behalf of investors who purchased redeemable senior notes between Feb. 13, 2020. and June 23, 2020, in the lead-up to WM’s acquisition of Advanced Disposal Services (ADS).

Filed June 9 in the U.S. District Court for the Southern District of New York, the case pits plaintiff United Industrial Workers Pension Plan against WM and several senior officers within the company, who, the suit alleges, violated portions of the Securities and Exchange Act of 1934.

A representative of WM’s media team says in an email the company cannot comment on the lawsuit at this time.

The affected investments include the following senior redeemable notes issued by WM in May 2019: 2.95 percent senior notes due in 2024, 3.20 percent senior notes due in 2026, 3.45 percent senior notes due in 2029 and 4 percent senior notes due in 2039.

On April 14, 2019, WM entered into an agreement and merger plan to acquire ADS for $4.9 billion, or $33.15 per share. Among other things, the merger required antitrust clearance from regulators, including the U.S. Department of Justice (DOJ).

Knowing that the transaction posed antitrust concerns, WM agreed in the merger deal to divest up to $200 million in revenue-producing assets of the combined companies over a prior 12-month period, according to the legal complaint.

On May 14, 2019, WM issued $4 billion worth of senior notes in a public offering to finance the company’s acquisition of ADS. As described in the final prospectus for the notes, four of the five series, totaling $3 billion in principal, were subject to a special mandatory redemption (SMR) clause in the merger agreement. The SMR clause required WM to repurchase the notes for 101 percent of par if the merger was not completed by July 14, 2020, the end date under the merger agreement.

In the notes’ prospectus, WM initially represented that the “merger will close by the first quarter of 2020,” according to the lawsuit. To address concerns raised by the DOJ, WM and ADS engaged in negotiations with several potential divestiture buyers, including GFL Environmental Inc., for the divestiture of assets in excess of the $200 million antitrust revenue threshold.

The lawsuit alleges that, throughout the class period from Feb. 13 and June 23, 2020, the defendants made false or misleading public statements and failed to disclose that the DOJ would require the company to divest itself of assets in excess of the $200 million antitrust revenue threshold; that, as a result, the merger would not be completed by the end date of July 14, 2020; and that the notes would be subject to mandatory redemption at 101 percent of par.

On June 24, 2020, WM announced that it and ADS had revised the terms of the merger and that WM needed to divest more assets than previously disclosed to receive DOJ approval of the deal. The companies also agreed to sell $835 million worth of assets to try to satisfy antitrust regulators, including approximately $300 million to GFL. Those assets had generated approximately $345 million in revenue in 2019.

Under the revised merger terms, WM agreed to purchase ADS for $4.6 billion, or $30.30 per share, $300 million less than the original price.

WM also revealed in June 2020 that the deal was now not expected to close until “the end of the third quarter of 2020”—six months later than had been represented by defendants at the start of the class period and after the July 14, 2020 end date which triggered the SMR redemption feature of the notes.

As a result of this disclosure, the prices of the notes fell. The amount of the loss will likely be determined through jury trial, which the United Industrial Workers Pension Plan has requested, according to the legal action.

The acquisition of ADS was finalized Oct. 30, 2020. Shortly prior to the closing, the DOJ announced WM would have to divest itself of 15 landfills, 37 transfer stations, 29 hauling locations, more than 200 waste collection routes and other assets to proceed with the ADS acquisition. At that time, the DOJ said that without the divestiture, the acquisition would substantially lessen competition for small container commercial waste collection or municipal solid waste disposal services in more than 50 local markets.

Domtar, a Fort Mill, South Carolina-based manufacturer of communication, specialty and packaging papers, has announced its first 100-percent-recycled packaging facility in Kingsport, Tennessee, is on track and is expected to be completed by the end of the year.

In a news release announcing the dedication of a bridge to former Kingsport Mill Manager Marty Barfield, Domtar also provided an update on the status of the conversion of its uncoated freesheet printing and writing paper machine.

The company says supply chain issues threatened to delay the conversion schedule, but Domtar rented its own large ocean freighter to take 43 dryer cans and other equipment from China to the Port of Charleston in South Carolina, keeping the project on track.

"This project has given us an opportunity to demonstrate each of Domtar's core values: innovation, agility and caring," says Charlie Floyd, vice president of packaging capital at Domtar. "There's more to come as we move toward completion and production."

Domtar announced the conversion in August 2020 and invested $350 million into the project. The converted Kingsport machine will produce approximately 600,000 tons per year of recycled-content containerboard and will consume 660,000 tons per year of old corrugated containers and mixed paper as raw material.

In April, the facility received its first bales, containing retail boxes and other mixed paper, and they will be stored until the machine is operational.

Packaging Senior Vice President Steve Henry says, "We're building recovered paper inventory in thoughtful, measured way to prepare for our start-up later this year."

Sustainability was not top of mind for companies in the 1950s, but recycling was the main reason Wearwell, originally known as Tennessee Mat, began producing industrial mats in 1950.

The Smyrna, Tennessee-based company launched when its founders, Max Greenberg and Charley Gross, saw an opportunity to convert scrap tires into industrial mats.

“They would take old tires, cut them down and put them together with wires and make mats you used to see at businesses,” says Phil Huss, product and engineering manager at Wearwell. “We were taking this material that nobody else wanted and making a product out of it. At the time, it wasn’t about sustainability. It was more that there was this waste and we wanted to turn it into something valuable.”

For the last 30 years, Wearwell has focused on developing safety products and ergonomic floor-related products for industrial workers. Huss says sustainability is a bigger consideration with product design today as the company has sought opportunities to include plastic scrap in its products this past decade.

“Our majority owner [Elliot Greenberg] is environmentally minded, and so am I,” he says. “We try to push for that kind of thought to be put into products when we’re developing them so that we do the best we can. We’ve come to the conclusion that in order to fix the plastic [waste] problem, we have to make sure there’s demand for recycled plastic. If there’s not, it doesn’t matter how much people put in their recycling bins if it’s not turned into anything. We have to create that demand so that there’s a value for it so people will do something with it.”

Wearwell created new demand for plastic scrap about a year and a half ago when it developed its Foundation modular platform system. The line incorporates 100-percent-postconsumer-recycled (PCR) polypropylene (PP).

Huss adds that this is the first time the company has used 100-percent PCR in a product.

“We had bought some postconsumer material in the past, but it was spotty,” he says. “For this product, I knew there were sources of PCR polypropylene out there that are good and controlled.”

Product development

Before Wearwell even developed the idea for its Foundation product line, Huss says the company considered ways it could use PCR. The company realized it could secure PCR PP from Troy, Alabama-based KW Plastics.

“KW Plastics is not too far from us, so we reached out to them early in the process and talked through the different product lines they had available,” Huss says. “They recycle many tons of PCR PP, and they have been a good partner with us.”

From there, the company developed Foundation modular platforms, which are made from PCR PP, as well as from aluminum. The modular platforms raise industrial workers to the height they need to be at to perform their jobs, and Huss adds that the platforms also help to improve worker safety.

“It raises people above hazards, such as pipes or wires running through a working area,” Huss says.

He adds that the company often customizes the Foundation platforms for each application, offering modularity to flooring solutions. Huss says standard parts enable customers to assemble platforms with no tools required in 18-inch increments, which allows for a variety of configurations. Or, he adds, if a company needs to move the platform, it can easily be reconfigured.

Incorporating PCR PP into the platform’s design was not too challenging. Huss says the company uses one additive with the PCR PP for the Foundation modular platforms to prevent sinks from forming in the tiles. “That’s the only thing we had to do as far as material adjustments,” he says.

Using 100-percent-PCR PP also is “simpler” than mixing the materials used for the platform, Huss adds. “Our feedstock of raw material has never given us reason to look at doing anything other than 100-percent-PCR PP.”

The company is seeking to incorporate PCR in more Wearwell products. “We are looking at introducing PCR to our cable protection line,” Huss says.

Since its debut, Foundation products have been used to help workers in machine centers, injection molding operations as well as a company in the aviation industry. Huss adds that Foundation platforms can be used in many more industrial applications.