EPR – Minnesota

In 2024, Minnesota Governor Walz signed  MN HB 3911, the conference committee report that included the creation of “Packaging Waste and Cost Reduction Act” that implements an Extended Producer Responsibility (EPR) program for packaging and paper products in Minnesota.

The language calls for the establishment of the program as “Producers must implement and finance a statewide program for packaging and paper products in accordance with this act that encourages redesign to reduce the environmental impacts and human health impacts and that reduces generation of covered materials waste through waste reduction, reuse, recycling, and composting and by providing for the collection, transportation, and processing of used covered materials for reuse, recycling, and composting.”

Specific details will be determined during the rulemaking process.

The Minnesota Pollution Control Agency (MPCA) is responsible for overseeing the program and appointing an advisory board to guide the program by Jan. 1, 2025.

The advisory board will report to MPCA and must consist of the following:

• two members representing manufacturers of covered materials or a statewide or national trade association representing those manufacturers
• two members representing recycling facilities that manage covered materials
• one member representing a waste hauler or a statewide association representing waste haulers
• one member representing retailers of covered materials or a statewide trade association representing those retailers
• one member representing a statewide nonprofit environmental organization
• one member representing a community-based nonprofit environmental justice organization
• one member representing a waste facility that receives and sorts covered materials and transfers them to another facility for reuse, recycling, or composting
• one member representing a waste facility that receives compostable materials for composting or a statewide trade association that represents such facilities
• two members representing an entity that develops or offers for sale covered materials that are designed for reuse or refill and maintained through a reuse or
• refill system or infrastructure or a statewide or national trade association that represents such entities
• three members representing organizations of political subdivisions, with at least one member representing a political subdivision outside the metropolitan area
• two members representing other interested parties or additional members of interests represented under clauses (1) to (10) as determined by the commissioner
• one member representing the commissioner.

The commissioner

• may not appoint members who are state legislators or registered lobbyists
• may not appoint members who are employees of a producer required to be members of a producer responsibility organization in this state under this act
• must endeavor to appoint members from all regions of the state.

Resources: 

• HB 3911 (2024) Packaging Waste and Cost Reduction Act
• MPCA: Extended producer responsibility for packaging program materials
• Packaging EPR Advisory Board

Minnesota describes the timeline in three phases.

Phase One 2025-2026—Building the Foundation

• Producers form a PRO
• The MN Pollution Control Agency (MPCA) appoints an advisory board and begins meeting
• Service providers register with the MPCA to qualify for reimbursement of costs
• The MPCA completes the needs assessment, receiving input from the advisory board and public

Phase Two 2027-2028—Establishing the structure

• MPCA creates collection lists that apply statewide, receiving input from the advisory board and public
• MPCA creates statewide program requirements for the PRO, receiving input from the advisory board and public
• The PRO submits the first stewardship plan to the MPCA and MPCA receives input from the advisory board and public

Phase three 2029-2032—Implementing change and tracking progress

• The PRO implements stewardship plan as approved by MPCA
• The PRO begins covering service and program costs, phased in to cover at least 90% by 2031
• The PRO submits annual reports to the MPCA
• Packaging and paper products must be refillable, reusable, recyclable or compostable by 2032

Date to Join PRO:

• July 1, 2025

Date for annual registration:

• Register by July 1, 2026, and each January thereafter

Dates covered materials can no longer be sold if producer not in a PRO:

• After Jan. 1, 2029, no producer may introduce covered materials unless the producer enters into a written agreement with a PRO to operate under an approved stewardship plan.
• After Jan. 1, 2032, no producer may introduce covered materials unless covered services are provided for the covered materials through a program approved in the stewardship plan and the materials are reusable and capable of being managed through a reuse system, or capable of refill and supported by a refill system.

The producer of a covered product shall be determined as follows:

• Person who first distributes the item in or into the state to be sold or distributed in packaging via e-commerce, remote sale or distribution including packaging used to directly protect or contain the item and packaging used to ship the item to a consumer.

Covered Products includes: 

Program requirements apply to packaging and packaging components, food packaging, and paper products sold, offered for sale, distributed, or used to ship a product within or into Minnesota. This includes online purchases and shipments.

Materials used to transport, market, protect, or handle a product are considered packaging. Food packaging: Materials to market, protect, handle, deliver, serve, contain, or store food and beverages are considered food packaging. The law makes exceptions for food packaging for certain products:

• infant formula
• medical food
• fortified oral nutritional supplement used by a person who requires supplemental or sole –source nutrition due to special dietary needs related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive

How will the PRO determine fees to members?

• The PRO may charge each member producer a fee according to each producer’s unit/weight/volume/or sales-based market share or by another method it determines to be equitable.

Are dates established as to when fees must be paid?

Beginning Jan. 1, 2029, as a part of its annual registration with the Commissioner, a PRO must submit the fee as determined by the Commissioner. By Oct. 1, 2028, and annually thereafter, the commissioner must provide written notice to the PRO in writing the amount of the registration fee.

Is there a bottle deposit law exemption in the EPR law? 

• Yes, there is language in the event Minnesota passes a bottle deposit law to exempt products covered under a bottle deposit law from EPR. This would leave only paper and tertiary packaging to be included in EPR.

Does Minnesota currently have a bottle deposit law?

• No, there is not currently a bottle deposit law in Minnesota.

Are there efforts to pass a bottle deposit law?  

• The attempt to pass a law last year was killed by the retailer lobbying effort.

Is there a small producer exemption?

• Yes

Small Producer Exemption:

• “De minimus Producer” is defined as a person who in the most recent fiscal year introduced less than one ton of covered material into the state and earned global gross revenues of less than $2 million.

Product Exemptions: 

The law makes a business-to-business exemption for packaging or paper products used to contain a product that is distributed to a commercial or business entity for the production of another product, without being sent to another entity or consumer.

The law makes exceptions for packaging for certain products:

• products regulated as a drug or medical device by U.S. FDA, including components and consumable medical equipment
• medical equipment or a product used in medical settings that is regulated by the U.S. FDA, including components and consumable medical equipment
• drugs, biological products, parasiticides, medical devices, or in vitro diagnostics that are used to treat, or that are administered to, animals and are regulated by the U.S. FDA or USDA
• products regulated by the U.S. EPA under the Federal Insecticide, Fungicide, and Rodenticide Act
• liquefied petroleum gas when the package was designed to be refilled
• hazardous or flammable products regulated by OSHA Hazard Communication Standard paint that is being collected and properly managed through an approved paint stewardship plan or program

The law makes exceptions for certain paper products:

• bound books
• products that are deemed unsafe or unsanitary to handle by recycling and composting facilities
• newspaper print publications, including supplements or enclosures, that include content derived from primary sources related to news and current events
• magazine print publication that has a circulation of less than 95,000 and that primarily includes content derived from primary sources related to news and current events

Will a Needs Assessment be conducted?

• Yes, the MPCA Commissioner must contract with a third party who is not a producer, PRO or member of the advisory board, to conduct the Needs Assessment.

When will it be conducted?

• By December 31, 2025, the commissioner must complete a preliminary needs assessment and by December 1, 2026, and every five years thereafter, the commissioner must complete a needs assessment.

Are there Post Consumer Recycled Content (PCRC) requirements in law?

• Yes

What are the dates and percentages when the PCRC reductions take effect?

• The Commissioner must establish statewide requirements and the date by which they must be met and must also review these requirements every five years.

Are there reusability requirements in the law?

• Yes, the commissioner must establish statewide requirements and the date by which they must be met and must also review these requirements every five years

What are the dates the reusability requirements take effect?

• Measurements are in five-year increments.

Are there packaging reduction requirements in the law?

The commissioner must establish statewide requirements and the date by which they must be met for

• recycling rate
• composting rate
• reuse rate
• return rate
• the percentage of covered materials introduced that must be waste reduced
• the percentage of PCRC content that covered materials must contain.

The stewardship plan must include performance targets for each covered materials type to be accomplished within a five-year period. This will include a description of how, for each covered materials type, the PRO will measure recycling, waste reduction, reuse, composting and PCRC requirements.

Are Large Producer Life Cycle Assessments required?

• We do not believe so.

First Offense:

• Civil penalties not to exceed $25,000 per day of violation could be imposed for violating or failing to perform a duty imposed by this act. A PRO or Producer that violates or fails to perform a duty is liable for a civil penalty not to exceed $25,000 per day of violation.

Second Offense:

• For the second violation within five years, the PRO or Producer is liable for a civil penalty not to exceed $50,000 per day.

Third Offense: 

• For a third or subsequent violation occurring within five years, the PRO or Producer is liable for a civil penalty not to exceed $100,000 per day of violation.

Are any materials completely banned from use under the law?

• Nothing is detailed in the bill, but the commissioner has the ability to create a list of banned items.