Oregon Extended Producer Responsibility (EPR) Law Upheld in Bellwether Case

The Oregon Challenge

In 2025, Oregon became the first state to begin collecting fees from covered producers under its packaging EPR program. The program requires companies that sell goods in packaging in Oregon to register with a state-approved PRO and pay annual “membership fees” based on their pro rata share of the weight and type of packaging they introduced into the state during the preceding calendar year. Circular Action Alliance (CAA), a nonprofit, serves as the designated PRO in Oregon, California, Colorado, Maryland, Minnesota, and Washington.

In July 2025, the National Association of Wholesaler-Distributors (NAW), filed suit alleging that the RMA violated both the U.S. Constitution and the Oregon Constitution. On February 6, 2026, the district court granted a preliminary injunction protecting NAW members from enforcement of the RMA, predicting there would be “serious questions” on the merits. The court subsequently dismissed NAW’s claims under the Equal Protection Clause, the unconstitutional conditions doctrine, and the Oregon Constitution, leaving only the claims under the dormant Commerce Clause and the Due Process Clause of the Fourteenth Amendment for trial.

After a five-day bench trial in July 2026, the court ruled on August 27, 2026, in Oregon’s favor on all remaining claims. The court rejected the plaintiff’s claims that the RMA improperly discriminates against interstate commerce. According to the court, the RMA’s benefits—specifically, waste management, public health and safety, and environmental protection—outweighed any burdens on interstate commerce; the court found those burdens were not clearly excessive. The court also rejected the plaintiff’s due process argument that the RMA improperly delegated governmental authority to a private entity, CAA, which the plaintiff noted is managed by competitors of NAW’s members. The court described CAA’s enforcement role as that of a “whistleblower to [ODEQ] to monitor producers’ compliance with the RMA,” rather than that of a private entity exercising delegated governmental authority. The court further stated that the plaintiffs and any other covered producer could form their own PRO.

How the Decision May Affect Other EPR Cases

Seven other states have enacted EPR laws similar to Oregon’s. The Oregon decision is likely to play a major role in other cases challenging packaging EPR laws in both state and federal courts:

• Lollicup USA, Inc. v. Feldon (District of Oregon, filed June 25, 2026) is a class action in which Plaintiffs also assert claims under the dormant Commerce Clause and the Due Process Clause of the Fourteenth Amendment. Plaintiffs seek an injunction prohibiting enforcement of the RMA against the class. In anticipation of the ruling in Feldon, the parties sought—and the court granted—a joint motion to indefinitely extend Defendant’s deadline to respond to the complaint. The parties must file a joint status report by September 10, 2026.
• NAW v. Ryan (District of Colorado, filed July 30, 2026) raises First Amendment claims in addition to claims under the dormant Commerce Clause and the Due Process Clause of the Fourteenth Amendment. NAW alleges that Colorado’s EPR Law: (1) compels association with CAA by requiring membership in CAA and allowing CAA to use fees collected from producers to engage in speech that NAW and its members do not support; and (2) restricts producers’ speech by prohibiting them from notifying consumers that price increases are due to EPR fees.
• Independent Lubricant Manufacturers Association (ILMA) v. Colorado Department of Public Health and Environment (Denver District Court, filed March 12, 2026) challenges implementation of Colorado’s EPR law and asserts claims under the First Amendment, the Due Process Clause of the Fifth and Fourteenth Amendments, and the Non-Delegation Doctrine. The Colorado EPR law prohibits producers from charging consumers “any kind of point-of-sale or point-of-collection fee” to recoup EPR compliance costs. ILMA argues that this prohibition prevents producers from accurately communicating the reason for price increases to their customers. ILMA seeks injunctive relief to prevent Colorado from enforcing the EPR law against members of the trade association. As of the date of this alert, a motion to dismiss ILMA’s claims remains pending.
• Nebraska et al. v. Heller (Eastern District of California, filed June 22, 2026) asserts claims under the Import-Export Clause, the First Amendment, the dormant Commerce Clause, and the Due Process Clause of the Fifth and Fourteenth Amendments. The plaintiffs—NAW and a 16-state coalition—allege California’s EPR law: (1) imposes a tax on goods imported into California; (2) restricts speech by prohibiting producers from informing customers, through an individual line item, that a portion of the price they pay is directly attributable to the California EPR Law; and (3) compels involuntary association with CAA by requiring membership in CAA and allowing CAA to use fees collected from producers to engage in speech that NAW and its members do not support. Hearings on the defendant’s motion to dismiss and the plaintiffs’ motion for preliminary injunction are scheduled for mid-January 2027.
• Natural Resources Defense Council et al. v. CalRecycle et al. (California Superior Court, filed June 25, 2026), challenges regulations implementing California’s EPR law. Plaintiffs allege that the regulations conflict with the statute by, among other things, using the federal definition of hazardous waste rather than the more stringent state-law definition and failing to exclude chemical recycling operations, such as pyrolysis, from the definition of recycling. Plaintiffs seek an injunction directing CalRecycle to “correct the invalid final regulations” and “align them with the [statute].” Alliance of California’s Farmers and Ranchers (ACFR) and American Chemistry Council (ACC) intervened in the action alongside defendant CalRecycle.

Practical Takeaways

• Determine Whether You are a Covered Producer: Businesses that sell products packaged with covered materials in Oregon should assess whether they are considered producers under the RMA. NAW members whose obligations were paused should also prepare for reinstatement of the law.
• Watch for an Appeal: An appeal of the Oregon case could result in another stay of enforcement for NAW members, but compliance with the Oregon EPR Law remains required unless and until a court orders otherwise.
• Develop a Multi-State Compliance Strategy: With EPR laws enacted in seven states and counting—and CAA serving as the PRO in all six states that have so far selected a PRO—businesses should develop a compliance approach that accounts for jurisdictional differences in scope, fees, and enforcement.

Attorneys in Ballard Spahr’s Environment and Natural Resources Group are closely monitoring EPR litigation nationwide and can help businesses navigate their rapidly evolving obligations, and the Manufacturing and Consumer Products Industry Group brings cross-practice coordination to find solutions to the unique challenges producers face. Whether you need guidance on compliance strategies, fee disputes, or representation in enforcement actions, our firm is ready to assist.

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