In May 2026, six of seven states (California, Colorado, Maine, Maryland, Minnesota and Washington) will (Oregon has an EPR law that has been enjoined) require covered businesses to submit Extended Producer responsibility (EPR) Reports. Many other states are now evaluating whether they should follow suit.
Two main goals of EPR laws, which have been used in Europe, are to incentivize reporting companies to reduce the potential packing waste they use and to increase recycling rates. Commentators have lamented the lack of harmonization across state EPR programs, which can create significant compliance hurdles for covered companies.
EPR reports are mandatory compliance documents that indicate the types, materials and total weights of packaging and products that companies put on the market. These data are used by the states (or their designated Producer Responsibility Organizations) to calculate fees. Penalties for noncompliance range from $5,000 to $50,000 per day, per violation.
Concerningly, EPR reports, to the extent not confidential, can give plaintiffs a potential roadmap to class action litigation.
Plaintiffs evaluate whether they should invest in potential cases in based on potential recovery, which is largely based on sales volume. In early settlement discussions, plaintiffs’ counsel will typically ask to see the defendant’s sales data. Defendants must choose whether to provide such data and are more likely do so when the data are favorable, e.g., showing low sales. Defendants will usually cite this in responses to plaintiffs’ pre-suit demands. EPR-mandated disclosure may give plaintiffs a leg up and drive plaintiffs to evaluate more cases involving products for which disclosure is already mandated, making them less likely to (favorably) settle cases where EPR disclosure reveals substantial volumes.
Consumer class action lawsuits alleging “greenwashing” may focus on whether EPR data show that “recyclable” or “sustainable” packaging claims are being met. Since recycling systems can be poor, even though a product may be labeled as recyclable, in practice the product may not be recycled at substantial rates. Plaintiffs may allege that a recyclable claim under such circumstances misleads consumers into thinking that the product will actually be recycled, thus influencing consumers’ choice.
Theories often espoused in these kinds of consumer class action cases are that a company’s display of “recyclable” claims conflicts with data showing low recycling rates – exactly the kind of issue that EPR laws are supposed to address. This is a lowering of FTC Green Guides standards, which have heretofore asked whether a product labeled as “recyclable” can be recycled, not whether it actually is recycled. See, e.g,, Swartz. v. Coca-Cola Company, No. 3:21-cv-04644 (N.D. Cal. 2023). Thus, EPR disclosures could be a roadmap for lawsuits against any company displaying recyclable claims.
This appears to be a situation where plaintiffs are gun-jumping and undermining EPR compliance. If plaintiffs can piggyback off EPR disclosures to seek windfall judgments or settlements, then fewer companies will (a) use recyclable claims; or (b) offer packages that are recyclable – thus undermining two core goals of EPR laws. If a package does not display a recyclable claim due to risk avoidance by advertisers, then how will consumers know to toss it in the recycling bin? The situation actually disincentivizes recycling.
