Fast-Approaching Extended Producer Responsibility (EPR) Deadlines: Colorado’s EPR Requirements and Registration

At a Glance

• The three states leading the development of EPR legislation are California, Colorado and Oregon. Under these states’ EPR laws, producers must either (1) join Circular Action Alliance as the approved producer responsibility organization (PRO) in California and Colorado, and the single active PRO in Oregon, or independently comply with the requirements of each state’s statute.
• Colorado will require producers to register with CAA by October 1, 2024, unless the producer intends to submit an individual program plan.

Extended producer responsibility (EPR) is an environmental policy enacted by several states,¹ which extends a manufacturer’s responsibility for its product’s packaging materials to the end of the product’s life cycle. Typically, state EPR laws require producers that manufacture, import or distribute packaged goods to register with a producer responsibility organization (PRO). More information can be found in our June 20, 2024, article regarding EPR and PROs.

Does EPR Apply to My Organization?

Does your organization manufacture paper products or packaged goods? Does your organization own or license brands of paper products or packaged goods? Does your organization import, sell, or distribute paper products or packaged goods? If you answered yes to any of these questions, it is time to evaluate compliance with new EPR laws across the country.

The three states leading the development of EPR legislation are California, Colorado and Oregon.² Under these states’ EPR laws, producers must either:

1. join Circular Action Alliance (CAA) as the approved PRO in California and Colorado, and the single active PRO in Oregon, or
2. independently comply with the requirements of each state’s statute.

Producers that elect to join CAA as their PRO in applicable states will be required to sign a participant producer agreement with CAA and an addendum relevant to each state. Producers will not be formally considered obligated producers in any state (and no fees or reporting obligations will be due) until the participant producer agreement and the state addendum has been signed. State addenda are not yet available, but will be shared with producers in advance of reporting deadlines.

Is My Organization a Covered Producer Selling Covered Materials in Colorado?

Colorado will require producers to register with CAA by October 1, 2024, unless the producer intends to submit an individual program plan.

To understand if your organization is covered by Colorado’s EPR program, you need to determine whether your organization (A) qualifies as a “producer” and (B) is required to participate in (i.e., is not excluded from) the EPR program. A summary of the determination requirements contained in Colorado’s House Bill 22-1355, Colo. Rev. Stat. § 25-17-701 et seq., is summarized in parts (A) and (B) below.

A. Your organization is a “producer” if any one of the following apply:

1. For products sold or distributed in Colorado, or imported into the United States for use in Colorado:
   • You manufacture packaging material under your own brand (or without an identifying brand);
   • You license a brand or trademark for product packaging; or
   • You import packaged product using covered materials.³
2. For products sold or distributed in Colorado through an internet transaction:
   • You produce products in packaging materials used to protect or contain the shipment; or
   • You package or ship products sold.
3. You are a publisher of paper products that are magazines, newspapers, catalogs, telephone directories or similar publications.
4. You manufacture paper products under your own brand.
5. You own or license a brand or trademark for paper products sold or distributed in Colorado.
6. You first distribute covered materials in or into Colorado.

B. Your organization is required to participate in Colorado’s EPR program if:

1. You sell $5.32 million⁴ or more in realized gross total revenue (excluding on-premise alcohol sales) annually, or annually use one ton or more of packaging/covering products in Colorado; and
2. Your products are not exempted from “covered materials” pursuant to Colo. Rev. Stat. § 25-17-703(13)(b); and
   1. Materials excluded from regulated covered materials include:
      1. Packaging materials intended for long-term storage of a durable product for at least five years;
      2. Paper products that could become unsafe or unsanitary to handle through their use;
      3. Printed paper used for distributing financial documents, billing statements, medical documents or other documents required to be provided in paper form by applicable consumer protection law or other laws;
      4. Bound books;
      5. Beverage containers subject to returnable container deposits;
      6. Packaging materials exclusive to industrial or manufacturing processes;
      7. Packaging used for FDA-regulated drugs, medical devices, dietary supplements, infant formula, fortified nutritional supplements used in certain medical circumstances, or biological materials related to animals like vaccines;
      8. Packaging used to contain a product regulated under the Federal Insecticide, Fungicide, and Rodenticide Act;
      9. Packaging related to containers for architectural paint;
      10. Products that are covered under Colorado’s “Poison Prevention Packaging Act of 1970”;
      11. Packaging used for repaired and refurbished portable electronic devices;
      12. Paper products used for a print publication that mainly includes current events from primary sources; and
      13. Any other material can be determined to be an exclusion by rule of the Solid and Hazardous Waste Commission created under Section 25-15-302 (1)(a), based on an analysis by the organization of operational and financial impacts and consultation with the advisory board.
3. You are not exempted as a “producer” pursuant to Colo. Rev. Stat. § 25-17-713.
   1. Producer exclusions are:
      1. State and local governments, nonprofits and individual businesses operating a retail food establishment located at a specific business location that is specifically licensed to Denver’s code of ordinances;
      2. An agricultural employer with less than $5 million in gross revenue from agricultural products sold in Colorado (under the brand name of the farmer, egg producer, grower or individual grower cooperative); and
      3. Builders, construction companies or construction contractors.

What Are Upcoming EPR Deadlines Relevant to Covered Producers in Colorado?

October 1, 2024

Covered producers in Colorado will be required to register with CAA by October 1, 2024, unless the producer intends to submit an individual program plan.

August 2025

CAA has set a preliminary reporting deadline in Colorado of August 2025. Producers that are registered with CAA can expect further guidance and support with packaging data reporting from CAA in advance of this deadline.

January 1, 2026

Colorado participant producers must first pay dues to CAA on or before January 1, 2026. Guidance on dues payment is forthcoming from CAA.