Am I a producer under packaging EPR if I sell online or through a marketplace?

The two layers of an online order

An online order has two kinds of packaging. The first is the packaging the product is sold in, such as the jar, tube, bottle or carton. The second is the packaging used to ship the order, such as the mailer, the outer carton and the filler.

Oregon, Colorado and Minnesota write this split into their laws. The producer of the first layer is the same as it would be for a store sale, which is typically the brand owner. The producer of the second layer is the person that packages and ships the order.

What it means by sales channel

• Your own website, shipped by you: you are the producer of both layers.
• A marketplace, shipped by you: you still pack and ship, so you are the producer of both layers. The marketplace is not the producer of your boxes.
• A marketplace that ships for you, such as Fulfillment by Amazon: you are the producer of your product's packaging, and the marketplace is the producer of the shipping packaging it adds.
• A fulfillment provider that packs and ships on your behalf: whether the provider or the brand counts as the person who packs and ships depends on the arrangement, so the answer is confirmed with the state or CAA.
• Your own private label products sold through a retailer: the brand owner is the producer, and a retailer selling products under its own brand is the brand owner of those products.

Fulfilled by the marketplace or fulfilled by the seller makes no difference to who is the producer of the product's packaging. That follows the brand.

What Oregon says about notice

Oregon is the clearest state on this. DEQ's summary says that for items sold into Oregon by remote sale, the producer of the shipping packaging, with Amazon as its example, must notify the producer of the sold product of the sale. The shipper must also notify its producer responsibility organization.

DEQ's FAQ adds that an online retailer whose packaging has a different producer must report its Oregon sales to that producer, so the producer is aware of its compliance obligations. In practice, a brand can expect to hear about its sales from the party that ships them.

State by state

• Oregon: the statute, ORS 459A.866, sets the two layers, and ORS 459A.869 sets the notice duty for remote sellers.
• Colorado: for internet transactions, the producer of the packaging that directly protects or contains the product is a producer, and for shipping packaging the person that packages or ships the product to the consumer is a producer. Packaging used only in sales between businesses is not covered.
• Minnesota: the statute splits the layers the same way, and the state's pollution control agency says the program covers online purchases and shipments.
• Washington and Maryland: law firm summaries describe tiered definitions that follow the brand owner, with the same online rule that the entity that packages the product for shipment is the producer of the shipping materials. Both states are still finalizing rules, so this section is updated as they are.
• California: the producer follows the brand owner or licensee. CalRecycle has said it will publish guidance on identifying producer status. The California guide covers the rest.

Why the answer matters

Each layer needs its own record. The product's packaging is broken down by component, with a material and weight for each piece. The shipping packaging is recorded for the way the order is actually shipped. The kits guide shows how the first record is built: kits, sets and bundles in an EPR report.

Exemptions differ by state. In Oregon a producer with under $5 million in gross global revenue, or under one metric ton of covered products sold into the state, is exempt. In California the exemption covers gross California sales under $1 million, and the producer still has to apply for it.