Can the Patchwork of State Programs Work Together?

1. STATE HARMONIZATION Can the Patchwork of State Programs Work Together? Jason Linnell NCER E-SCRAP 2008 – Tuesday, September 16

2. About Us • Non-profit 501c3 • Located in Parkersburg, WV area • ■ Federal, State, Association Projects • ■ National Electronics Recycling Infrastructure Clearinghouse • ■Research, Collection Programs • NCER’s Mission: • ■Dedicated to the development and enhancement of a national infrastructure for the recycling of used electronics in the U.S.

3. Purpose 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?

4. Overview • 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

5. Schedule 1:00 - 2:00 PM Overview Presentation 2:00 - 2:15 PM Discussion Questions from Group 2:15 – 2:30 PM Break 2:30 - 3:00 PM Panel of State Representatives 3:00 – 3:15 PM Manufacturer/Recycler Perspectives 3:15 - 4:00 PM Open Forum and Follow-Up

6. Current “State” of States 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 Where Do We Stand?

7. Current “State” of States Rhode Island NYC States With Producer Responsibility Laws States With ARF (Consumer Fees) Laws States With Landfill Disposal Fee States With Disposal Ban/No E-Waste Law

8. Current “State” of States 5 “Types” of State E-cycling Systems: • Consumer Pays at POS - California model • Producer Pays Returns – Maine model • Producer Managed With Default - Pacific Northwest model • Producer Managed No Default or Convenience Goals –Minnesota model • Producer Program Required -Mid-Atlantic & “Red” States Model

9. Current “State” of States #1 Consumer Pays at POS California Model Existing Laws: ■CA Only Key Elements: ■ Consumer ARF ■ State administers fund, flat rate for collection/recycling ■ No collection/conveniece goals ■ State authorizes collectors/recyclers

10. #2 Producer Pays Returns Maine and Variations Current “State” of States Existing 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

11. Current “State” of States #3 Managed With DefaultPacific Northwest Model Existing Laws: ■Washington, Oregon, New Jersey Key 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

12. Current “State” of States #4 Producer Managed No Default or Convenience Goals 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

13. Current “State” of States Producer Program Required Mid-Atlantic & “Red” States Model 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

14. Product Scope By State Hawaii 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, laptops, computer monitors over 9 inch and TVs over 9 inch Rhode Island NYC *Product scope for MD and MN includes products triggering a manufacturer obligation to participate in the program. Desktops, monitors, laptops TVs, Desktops, monitors, laptops, keyboard, mice, and other peripheral equipment (excluding printers)

15. Adding Covered EntitiesOur Patchwork Quilt Rhode Island NYC Hawaii -Households -Small Businesses -Non-Profits -Any Entity w/ Fewer Than 7 Devices -Households -Small Governments -Small Businesses -School Districts -Charities Consumers Only (Who Use Computer Equipment for Home or Home Business Use) Any Entity Households & Schools Households Only

16. Current “State” of States Requirements By State At A Glance Registration Fee Plan Required Annual Reporting CA: CT: ME: MD*: MN:

17. Current “State” of States Registration Fee Plan Required Annual Reporting NC: OR: TX: WA: Requirements By State At A Glance

18. Current “State” of States Requirements By State At A Glance Registration Fee Plan Required Annual Reporting IL: HI: MO: NJ: NYC:

19. Current “State” of States Requirements By State At A Glance Registration Fee Plan Required Annual Reporting OK: RI: VA: WV:

20. Current “State” of States California: 1.79 lbs/capita in 2005, 65 million lbs 3.5 lbs/capita in 2006, 128 million lbs 5.1 lbs/capita in 2007, 185 million lbs Maine: 3.1 lbs/capita in 2006, 3.85 million lbs 3.51 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] How Are They Faring?

21. 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?

22. 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

23. Common Element ExampleReturn Share Data

24. 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

25. 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

26. BDMS Reports • BDMS has several reporting 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

27. SAMPLE This report shows that RCA has a total return share of 6.62% REPORT

28. 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

29. Common Element ExampleManufacturer and Brand Registration

30. Manufacturer Registration Who 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

31. Defining the Manufacturer The 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)

32. How Is A Manufacturer Defined In Each State? Differently! The Manufacturer/Brand Connection • 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)

33. 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

34. 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

35. 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

36. 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

37. 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?

38. What Do All Of These TVs Have In Common?

39. Same Brand, Different “Manufacturer!” The Manufacturer/Brand Connection • 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 WA • Challenge: Recycling responsibility sometimes on brand “licensees” sometimes “licensors”

40. Manufacturer Patchwork

41. 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?

42. 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

43. 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

44. Brand Recording Pitfalls “Creative”: drive, not brand The BRAND (in WA) is “CCI”! “Personal Computer”: not brand, but IBM trademark This Brand is a Candidate for Misidentification!

45. Manufacturer here: “Toshiba” Sub-brand here: “Blackstripe” Should be recorded as “Toshiba” NOT “Blackstripe”!

46. 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.

47. 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

48. 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

49. Gateway Monitor Gateway Spotted Box Logo On Front, but word “Gateway” Is Missing *Difficult to Identify Unless Familiar With Branding!

50. Gateway Monitor (Back) Missing Back Panel – No Manufacturer Information For ID Purposes!