Can the Patchwork of State Programs Work Together?

Can the Patchwork

of State Programs Work

Together?Jason LinnellNCER

STATE HARMONIZATION

E-SCRAP 2008 – Tuesday, September 16

About Us

• Non-profit 501c3• Located in Parkersburg, WV area

■ Federal, State, Association Projects

■ National Electronics Recycling Infrastructure Clearinghouse

■ Research, Collection ProgramsNCER’s Mission:

■ Dedicated to the development and enhancement of a national

infrastructure for the recycling of used electronics in the U.S.

With the proliferation of varied state and now local electronics recycling legislated programs & no immediate prospect of a national program, various stakeholders are looking at ways the existing programs can harmonize common elements.

Where can we work together

to create efficiencies

amongst states?

Purpose

• Look At The Current “State” of States

• Brief Review of Previous Findings Manufacturer-brand connections Return share and brand recording

• Common elements of each program Manufacturer registration Market share data Recycler registration Recycler ESM requirements Retailer requirements?

• Examples of Collaboration

Overview

1:00 - 2:00 PMOverview Presentation

2:00 - 2:15 PM Discussion Questions from Group

2:15 – 2:30 PM Break

2:30 - 3:00 PMPanel of State Representatives

3:00 – 3:15 PM Manufacturer/Recycler Perspectives

3:15 - 4:00 PM Open Forum and Follow-Up

Schedule

Where Do We Stand?

• 19 programs with mandatory financing AR, CA, CT, IL, HI, ME, MD, MN, MO,

NC, NJ, NYC, OK, OR, RI, TX, VA, WA, WV 149 million US residents or 49.5% of US

population• Disposal bans

NH, RI, AR

Current “State” of States


Percentage of Population Covered by E-waste Law

% Covered, 49.5%

% Not Covered,

50.5%

NYC

Rhode Island

States With Producer Responsibility

Laws

States With ARF (Consumer Fees) Laws

States With Landfill Disposal Fee

States With Disposal Ban/No E-Waste

Law


5 “Types” of State E-cycling Systems:1. Consumer Pays at POS - California

model2. Producer Pays Returns – Maine

model3. Producer Managed With Default -

Pacific Northwest model4. Producer Managed No Default or

Convenience Goals –Minnesota model5. Producer Program Required -Mid-

Atlantic & “Red” States Model


#1 Consumer Pays at POS California ModelExisting Laws:

■ CA OnlyKey Elements:

■ Consumer ARF■ State administers fund, flat rate

for collection/recycling■ No collection/conveniece goals■ State authorizes

collectors/recyclers

#2 Producer Pays Returns Maine and VariationsExisting Laws:

■ Maine, Connecticut, and (Rhode Island)Key Elements

■ Recyclers count/weigh brands, send bill to manufacturers w/approved rates

■ No collection/convenience goals■ Collection costs at local govt


Existing Laws: ■ Washington, Oregon, New JerseyKey Elements

■ Manufacturers use default plan or set up independent program (with restrictions)

■ Defined convenience goals (number of locations, etc). Some with collection goals

■ Return share and market share data needed

#3 Managed With DefaultDefault Pacific Northwest Model


Existing Laws: ■ Minnesota, Illinois, New York City, (Hawaii)Key Elements:

■ Manufacturers responsible for defined amount, except HI

■ Some with unspecified “convenient” goals (NYC)

■ Return share IT/market share TV split

#4 Producer Managed No Default or Convenience Goals


Existing Laws: ■ MD, WV, VA, TX, OK, MO

Key Elements: ■ Covered manufactures need to

register and describe program■ No collection, convenience

goals; no market/return share data

■ In some states, registration fee required if no program

■ Some limited to IT products

Producer Program Required Required Mid-Atlantic & “Red” States ModelModel


Product Scope By State

Desktops, Laptops (over 4 inch),TVs (over 4 inch), Monitors (over 4 inch)

Laptops, TVs (over 9 inch), Monitors (over 9 inch)

Desktops, Laptops, TVs (over 4 inch), Monitors (over 4 inch)

TVs with exclusions (over 4 inch), Monitors (over 4 inch), Laptops (over 4 inch)

TVs (over 4 inch), Monitors (over 4 inch), Laptops (over 4 inch)

Desktops, laptops, computer monitors, printers, and TVs

Desktops, laptops, computer monitors, printers, keyboards, mice, digital music players, and TVs

Desktops, monitors, laptops

TVs, Desktops, monitors, laptops, keyboard, mice, and other peripheral equipment (excluding printers)

*Product scope for MD and MN includes products triggering a manufacturer obligation to participate in the program.

NYC

Rhode Island

Desktops, laptops, computer monitors over 9 inch and TVs over 9 inch

Hawaii

Adding Covered EntitiesOur Patchwork Quilt

-Households-Small Businesses-Non-Profits-Any Entity w/ Fewer Than 7 Devices

-Households-Small Governments-Small Businesses-School Districts-Charities

Households Only

Consumers Only (Who Use Computer Equipment for Home or Home Business Use)

Any Entity Households& Schools

Hawaii

NYC

Rhode Island

Requirements By State At A Glance

Registration Fee Plan Required Annual Reporting

CA:

CT:

ME:

MD*:

MN:



Registration Fee Plan RequiredAnnual Reporting

NC:

OR:

TX:

WA:



IL:

HI:

MO:

NJ:

NYC:

Current “State” of StatesRequirements By State At A Glance


OK:

RI:

VA:

WV:



How Are They Faring?California:

1.79 lbs/capita in 2005, 65 million lbs3.5 lbs/capita in 2006, 128 million lbs5.1 lbs/capita in 2007, 185 million lbs

Maine:3.1 lbs/capita in 2006, 3.85 million lbs3.51 lbs/capita in 2007, 4.63 million lbs

Minnesota: 6.5 lbs/capita from Jul 07 – Jun 08

Maryland:1.2 lbs/capita in 2006, 6.2 million lbs

[not program stats]1.5 lbs/capita in 2007, 8.7 million lbs

[not program stats]


What Can We Do?

Assumptions for Workshop• Can’t change the laws/regs • Work on common elements that

provide efficiencies, reduce duplication

• Not create unfair advantages for one group over another

Then, look at common elements• Where are they identical?• Where can differences be

accommodated?• What projects look most promising?

Common Program Elements

Some common elements of each state program

Return Share Data Manufacturer registration Market share data Recycler registration Recycler ESM requirements Retailer requirements

Common Element Example

Return Share Data

Brand Data Management System

What is it?The Brand Data Management System is an online data sharing project of brand return shares and state-mandated program data.• Currently houses 1,487 brands across various

product categories (monitors, TVs, desktops, laptops, P-DVD)

• Approx. 30 of these brands have a return share of 1% or more by total weight across product categories

• Shows brands and their common misspellings • Shows brand quantities returned by unit/weight

across 6 regional studies (FL, MN, IL, WV, WA, New England)

• Go to: www.electronicsrecycling.org/BDMS

Return Share Data

• Requirement: Division of costs for manufacturers by % of their brands in the waste stream

• Once program up and running, data can come from sampling or full counts For first program years, laws specify “best

available data”• Limited number of studies of brand

counts• NCER compiled existing studies, added

data from WV program and created new online, public database As part of NERIC project

BDMS Reports

BDMS has several reporting options:options: • Compare brand “return share” across all studies by product type (i.e., monitors) OR across all product types• Determine an average “return share” for each brand across all studies and product types• Determine each brand’s “registration” or “claim” status in each state program using return share for billing purposes • Determine manufacturer “return share” by combining claimed/registered brands

SSAAMMPPLLEE

RREEPPOORRTT

This report shows that RCA has a total return share of 6.62%

Data Sharing

• NCER provided custom report• For OR and WA, soon for RI• Limited to studies with 4 major

product categories Maine data most comprehensive/recent,

but excluded due to desktop exclusion• Imperfect, but “best available”

Some regional companies from pilot studies penalized

• Example of “easy” harmonization Clearinghouse of national data

Common Element Example

Manufacturer and Brand Registration

Manufacturer RegistrationWho is the manufacturer under manufacturer responsibility?

• Is it the company who designs the covered product? • Is it the company who assembles the product under contract from the designer? • Or is it the company who owns the rights to the brand that is placed on the product?

Two steps:• Define who you are looking for• Find ways to identify those manufacturers

All PR states require “manufacturer” registration with their brands

• Some regional companies, but mostly multi-national companies

Defining the ManufacturerThe terms “producer” and “manufacturer” have been used interchangeably in virtually all non-legal contexts, but….

• State legislators have used the term “manufacturer” almost exclusively

The term “manufacturer” traditionally connotes physical activity but has become more removed from the physical formation process

• “2a: the process of making wares by hand or by machinery especially when carried on systematically with division of labor…” • “3: the act or process of producing something” • Source: “manufacture.” Merriam-Webster’s Online Dictionary. 2007. http://mw1.merriam-webster.com/dictionary/manufacture. (10/11/2007)

http://mw1.merriam-webster.com/dictionary/manufacture



• Some states allow non-brand owners to claim responsibility for brands (ie. ME & MN)• Some states require the “brand owner” to be responsible for that brand (ie. WA & MD) • Some states allow only the brand owner or licensee to be the “manufacturer” (ie. OR)• Some states cover historic producers, even if no longer in that product market (ie. ME & WA)

How Is A Manufacturer Defined In Each State? Differently!

The Manufacturer/Brand Connection

Owner of the rights to the main brand on the front of a product is the only entity that can be the “manufacturer”. Need to find the “main” brand on the front of a covered product in a return share system. In a market share system, look for the main brand under which a covered product is marketed.

Brand Owner Only Approach

Advantages: • Single entity for each brand is responsible • For return share, brand ownership records should more available than manufacturing history• Over time costs could be included in licensing agreements • Easy to explain – whoever currently owns rights is responsible

Disadvantages: • Owner of brand rights may control design, manufacture, distrib.

Does that undercut PR design feedback incentive?• Cases where 1 company manufacturers several licensed brands (e.g., Hello Kitty, Strawberry Shortcake, etc.) but brands are held by multiple companies • A company that wants to take on the responsibility and costs for a brand (e.g., a producer that licenses a brand) is denied• Brand label on front only is the identifying marker, and if missing in return share system, product is an orphan.• Gray area when multiple brands on a product are owned by different entities (IBM ThinkPad)

Brand Owner Only Approach

ME, MN, and OR • Brand owner is default, but a brand licensee (or other entity) can register or claim a brand and its associated recycling responsibility. • Brand on the front is usually the brand for which the “manufacturer” is responsible, but back label information can also be used to supplement or can be used in place of if front label is missing. • In a market share system, look for the main brand under which a covered product is marketed.

“Claiming Manufacturer” Approach

Advantages: • Allows any company willing to take on

responsibility for recycling responsibility to do so; licensee could be closest to design of the product

• If no company claims a brand, brand owner still responsible, unless brand is deemed an orphan.

Disadvantages:• Administrative complexity: allows multiple

entities to claim a single brand• Orphan determination can be particularly

tricky when one historic producer among several goes out of business

“Claiming Manufacturer” Approach

• Most state laws allow importer to register/claim a brand if the “manufacturer” (brand owner or otherwise) has no presence in the US.

• Historic “manufacturers” of product no longer sold can also be a manufacturer in return share systems (JC Penney, Sears, etc)

• Potential hybrid approach: presume the brand owner is responsible, but allow a single company other than the brand owner assume responsibility for covered products carrying that brand.

Other Approaches?

What Do All Of These TVs Have

In Common?

Same Brand, Different “Manufacturer!”

• Barbie Brand TVs Registered by Mattel, Inc. in WA and

Emerson Radio Consumer Products in ME, MN, MD and OR

• Runco Registered by Planar Systems, Inc. in ME,

MN and OR and by Runco International in WA

• Xerox Registered by Proview Technology Inc. in

ME, MN and OR and by Xerox Corp. in WAChallenge: Recycling responsibility

sometimes on brand “licensees” sometimes “licensors”

The Manufacturer/Brand Connection

Category ME MD MN TX OR WA

# Unique Manufacturers 197 64 75 40 148 170

# Unique Brands 435 131 145 51 212 259

Desktop Brands 2 N/A N/A N/A 80 92

TV Brands 254 N/A N/A N/A 87 117

Monitor Brands 285 N/A N/A N/A 97 114

Laptop Brands 34 N/A N/A N/A 49 56

Portable DVD Brands 13 N/A N/A N/A N/A N/A

Manufacturer Patchwork

Getting to Manufacturer

Brands:• Brand marking is primary means of

assigning financial responsibility for recycling costs Completely new use of brand information States are doing it differently

• What is the impact?

What is a “Brand?”It is “a name, sign or symbol used to identify items or services of the seller”

Why look at “brand” for producer responsibility?• Most reliable visible evidence at end-of-life

and when sold. Most large producers use company name for

brand• i.e. Dell-Dell, Sony-Sony

Brand Recording• Brand recording is required in

some states In ME/CT/RI, all units are recorded and in

WA/OR/NJ brands are recorded by random sample

• High potential for errors with recording• NCER developed Best Mgmt Practices

Reduce errors, guide for brand recorders• Steps detailed for brand recorder

Distinguish product categories – gray area Find true “brand” label, will differ by state Identify common mis-identified markings

Brand Recording Pitfalls

““Creative”: drive, not Creative”: drive, not brandbrand

““Personal Computer”: Personal Computer”: not brand, but IBM not brand, but IBM trademarktrademark

The BRAND (in WA) The BRAND (in WA) is “CCI”!is “CCI”!

This Brand is a Candidate for Misidentification!

Manufacturer here:“Toshiba”

Sub-brand here:“Blackstripe”

Should be recorded as “Toshiba” NOT “Blackstripe”!

What is THE “Brand?” for Recycling Purposes?• Same product may include multiple

“brand” markings Are true brands, but not correct brand

for assignment of responsibility

• Correct brands to record depends on program, purpose of brand recording

• In ME, the correct brand is the one that is registered to a claiming “manufacturer” and may require recording of marking on both the front and/or back of unit

• In WA, the brand on the front of the unit exclusively is used to determine the “true” brand for recycling responsibility purposes.

Hurdles In Determining Brand Ownership

• Brand name can differ from the “producer” name Retailers brand differently, i.e. Walmart - ilo,

Best Buy – Insignia• Primary brands vs. secondary brands

Secondary Brand Examples: Presario (HP), Macintosh (Apple)

How to train brand recorders?• Licensing!

No central registry of licensees/licensors Less common among IT companies Creates complexity in determining who is

ultimately responsible

Other Hurdles In Determining Brand-Manufacturer Link

• Not getting at physical manufacturer (e.g., contract manufacturing)

• Licensing of legacy brands, i.e. Polaroid, Westinghouse Also called “Back from the Dead” or

“Zombie” brands Brand equity helps make a product

recognizable in a cluttered marketplace, even when not associated with that type of product

Gateway MonitorGateway MonitorGateway Spotted Box Logo On Gateway Spotted Box Logo On Front, but word “Gateway” Is Front, but word “Gateway” Is

MissingMissing

*Difficult to Identify Unless Familiar *Difficult to Identify Unless Familiar With Branding!With Branding!

Gateway Monitor (Back)Gateway Monitor (Back)

Missing Back Panel – No Manufacturer Missing Back Panel – No Manufacturer Information For ID Purposes!Information For ID Purposes!

Manufacturer registration All states except CA require some form

of registration Brands tied to manufacturers (albeit

different basis) Informal contact info sharing/updates

currently happening Possible joint project for one-stop

manufacturer and brand registration Benefits: eliminates duplicate entries,

conflicting info across states, reduce non-compliance in certain states

Challenges: accounting for varying definitions, finding sustainable home, manufacturer/state acceptance

Where is the common ground?

Other ExamplesPotential Areas for

Collaboration

•Needed for recycling financing basis: MN – all VDDs NYC – all covered products CT, IL, RI, OR, NC – TVs (WMMFA) – 50% of costs for all

manufacturers• Needed for registration fees:

WA, OR – all covered products• Needed for orphan costs:

CT

Market Share Data

• Potential Collaboration: Develop single source of national

market share for all covered products using combination of research reports

• Benefits: All states using same or similar data No need for states (and manufacturer reg

fees) paying multiple times for same data sets• Challenges

Data protection! Market research business model don’t mesh,

some refuse to work for this type of project

Market Share Data

•Potential Collaboration Single registration for recyclers

rather than duplicate across states• Benefits:

Reduces confusion about which recyclers are qualified

• Challenges: Still many local/regional recyclers

may not need national registration State permitting laws vary

Recycler Registration

•Potential Collaboration: Recycler ESM requirements Currently multiple sets of similar

BMPs/EMPs•Probably already covered

with R2 discussions

Recycler ESM Requirements

Retailer Requirements

• Potential Collaboration: Retailer requirements: some provisions

require education info from retailers to consumers on recycling options. Adopt single set of messages and national reference point

• Benefits: National retail chains have one source of

info to distribute for compliance• Challenges:

Outreach and retailer involvement Some states without laws, and few recycling

options

Other Examples?

Where Else Can States Cross Harmonize? Some ideas…

• Manufacturer Reports?• RoHS compliance

reporting/verification• EPEAT requirements• Sampling Brands (get more

representative national data)• Definition of “convenience”

State Implementation Info and Compliance Calendar

available at:www.ecyclingresource.org

Compliance Calendar

Thank You!

Jason Linnell, NCERPhone: (304) [email protected]

Visit us on the web: www.ncerwv.orgAnd www.ecyclingresource.org

Documents

Can the Patchwork of State Programs Work Together?