Resource Constraints Keeping States from Going After Noncompliant Online Brands

Although many state e-waste laws address online sales, there’s been little enforcement action against brands that sell into states without complying with recycling regulations, according to the National Center for Electronics Recycling (NCER) and state regulators. The problem is especially acute during the holiday season, when brands crop up online that offer deep discounts but don’t register with state authorities or pay for recycling, said NCER, which is trying to identify and list on its website offending brands through its Electronic Recycling Coordination Clearinghouse (ERCC). The effort’s focus is on educating consumers so they can let state regulators know about brands that are not listed on their state’s compliant brand list, said NCER Executive Director Jason Linnell.

"It’s a challenge for state regulators” to track noncompliant products and notify manufacturers and then follow up with enforcement action, he said. There have been “very few” enforcement cases against manufacturers because it’s “very difficult to rise to that level of getting the attorney-general to send out an enforcement letter,” Linnell said. This despite the fact that many state laws prescribe penalties on manufacturers and retailers for selling noncompliant brands, he said: “It’s a constant struggle to keep up with the information that’s out there in terms of who is in compliance and who is not. We try to track that and keep everybody up to date through the ERCC."

Washington state has in the past stopped retail sales of some unregistered brands in brick and motor stores but enforcement action against an out-of-state company is a “little tricky,” said Miles Kuntz of the Washington Department of Ecology. In many cases, such sellers choose not to respond to “any kind of e-mails or telephone calls” from the department, he said: “It’s really difficult to go after an online sales organization that does not respond to our request because we don’t have a lot of resources to spend chasing and getting them to actually comply with the law.” Washington hasn’t joined the ERCC because “we don’t have the money to pay the fees,” Kuntz said.

Oregon’s e-waste law deals with online and catalog sales, said Kathy Kiwala of the Oregon Department of Environmental Quality. “We have not gotten into much compliance or enforcement action,” she said. “I wish we were doing some of that.” State e-waste programs accept used products from brands that don’t comply, said Linnell. NCER manages Oregon’s state-run e-waste program. In states that have manufacturer obligations based on “return share,” used products from noncompliant brands go into the “orphan pile,” he said. But in states that have “market share” obligations, the cost of recycling such products is borne by manufacturers who comply, he said.

Some regulators have reached out to online retailers asking them not to sell noncompliant brands into their states and some have obliged, officials said. In Washington, Amazon has been “pretty willing to work with us and have done quite a bit of work to get brands off their site that were not registered,” said Kuntz. But with the thousands of smaller online retailers it’s becomes difficult, he said. Walmart.com has blocked sales of brands into states in which they are not registered, Linnell said.