Stemming the Proliferation of EPR The hope among business advocacy groups is that
a successful lawsuit in Oregon or one of the other states with active EPR enforcement will deter other policymakers from adopting equivalent laws in their jurisdictions. The legislatures in at least 14 other states have considered EPR laws, though several of those attempts have been set aside or failed to advance in a floor vote.
A similar piece of legislation that business advocacy
groups are watching is New Jersey’s Recycled Content Law. While New Jersey’s law does not use a producer responsibility organization like in other states, it still imposes requirements that are adjacent to those of EPR regulations. Among other things, it sets minimum levels of recycled content that must be used in rigid plastic containers, plastic beverage containers, glass containers, paper and plastic carryout bags, and plastic trash bags, and prohibits use of polystyrene loose-fill packaging. Food packaging using these materials must comply with those requirements starting January 2027. Legislation like the New Jersey recycling law shows that the packaging EPR issue is likely to remain a concern even if courts curb implementations that use a third-party producer responsibility organization. As states adopt different standards and fees for managing packaging, McPhail anticipates distributors will face even more complex compliance burdens. “We’re looking at this from the aspect of going into Oregon, but we sell into most states as well,” he said. “So now we have to figure out the criteria for each one of those states.” The issue compounds itself for distributors with facilities and customers in different parts of the country. Consider the scenario where a dealer moves equipment into its warehouse in Oregon, repackages it, then sells it to a chain customer in California. Depending on how the definition of an obligated producer is interpreted, distributors could end up paying fees to both states for the same packaging. Distributors could shift strategies to have manufacturers drop-ship equipment and supplies directly to the end user on the distributor’s behalf. Drop shipping would avoid the possibility of duplicative EPR fees, but doing so could undermine the service value that companies like Curtis pride themselves on adding to the distribution channel. “If it’s a large enough project, you’ve got to coordinate
10 different vendors to drop-ship everything at the same time,” he said. “That’s why we have our warehousing, so that we can get it consolidated, make sure we have everything, and then deliver it to site in one shot.” Beyond the regulatory burden and added costs, EPR fees could affect how the foodservice equipment and supplies industry addresses challenges like freight
damage. One of the purposes of the state programs is to motivate obligated producers to use fewer materials in their packaging. While that aims to lessen the recycling load, it may also have an adverse effect on the work of the FEDA Future of Distribution Council to improve the quality of packaging to better protect equipment in transit. If reducing packaging materials compromises the ability of the packaging to absorb the jostling and bumps that happen during shipping, then distributors can expect more freight claims and an uptick in the number of customers rejecting equipment deliveries.
Alternative Approaches
If the goal of EPR laws and similar policies is to encourage packaging producers to use less or more recyclable material, McPhail suggests an alternative to the punitive approach. Instead of simply imposing new fees through a complicated and poorly defined regulatory structure, policymakers could provide incentives for businesses to make environmentally beneficial investments such as replacing diesel delivery trucks with greener alternatives. “Then it’d be a conversation,” he said. “As we purchase new vehicles, do we then look at something that’s more of a biodiesel? Or is there something else that would offset the carbon footprint to reduce those EPR fees?” Ultimately, the debate over EPR is about more than who pays the fee. For distributors, the emerging patchwork of state laws raises fundamental questions about who is responsible for packaging, how those obligations are determined, and whether environmental goals can be achieved without creating unnecessary costs and inefficiencies in the supply chain. As more states consider their own approaches, distributors will be watching not only the courts, but also whether policymakers can find a way to make packaging responsibility clearer, more consistent, and more workable.
FEDA EPR Resources FEDA has published comprehensive EPR resources for members at
feda.com/epr-resources. These documents are intended to assist FEDA members in navigating state EPR rules, with particular attention given to identifying the obligated producer under Oregon’s Recycling Modernization Act. Included in these files is the EPR Decision Tree on the following page, which is designed to help distributors determine whether they qualify as a producer in Oregon.
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