Courts Unpack Packaging EPR Laws

Extended producer responsibility (EPR) laws that govern product packaging have moved from the state legislative phase into implementation, enforcement, and increasingly, litigation. Last week, the first federal ruling on the constitutionality of a state packaging EPR law was issued by the U.S. District Court for the District of Oregon. Judge Michael Simon previously granted the National Association of Wholesaler-Distributors (NAW) a preliminary injunction temporarily barring enforcement of Oregon’s Plastic Pollution and Recycling Modernization Act. But after a five-day trial, Judge Simon rejected NAW’s arguments and upheld the law as constitutional.[1]

Beginning in 2021, states including Oregon (2021),[2] California (2022),[3] and Colorado (2022)[4] have adopted ambitious packaging EPR programs to allocate and reduce the costs of packaging waste. The purpose of these laws is to shift those costs from local governments and households to the upstream manufacturers, brand owners, distributors, importers, and retailers that sell packaged products (known as packaging “producers” under EPR laws).[5] These laws are largely implemented by producer responsibility organizations (PROs), non-governmental membership-based entities that collect fees from producers and administer EPR programs under state oversight. Each state’s EPR law is slightly different, creating an inconsistent regulatory patchwork with which producers must comply. These laws impose significant business costs and create compliance challenges—most of all, for producers that operate nationally. Costs and incentives created by these laws have spurred changes in logistical practices and packaging designs  across nearly every product sector nationwide.

As implementation deadlines arrive and PROs begin invoicing and collecting fees, affected businesses and other stakeholders have increasingly turned to the courts for relief. A leading industry association, individual businesses, and attorneys general from states that have not enacted EPR programs have all filed legal challenges to these programs. And in litigation from the opposite direction, environmental groups have challenged agency regulations implementing these laws, arguing that they are insufficiently stringent. The resulting litigation is poised to shape not only the future of individual state laws, but also the broader viability of packaging EPR programs nationwide. From the limited preliminary injunction in Oregon[6] followed by the recent decision ultimately upholding the constitutionality of Oregon’s EPR law,[7] to the pending motion for an injunction in California,[8] the litigation landscape is quickly evolving. Companies operating across multiple states should closely monitor these developments in the coming months as those decisions will have broad impacts on their compliance efforts and the future of EPR.

Background on Packaging EPR Laws

Packaging EPR laws generally require “producers” of covered packaging and paper products to finance or operate collection, recycling, and waste management systems. While specific requirements vary by state, most programs operate through a PRO that, as discussed, collects fees from producers and administers the program under state oversight. In most states, that entity is the Circular Action Alliance.[9]

While each state EPR law is slightly different, they share the same building blocks. Implementation typically begins with an infrastructure study conducted by the PRO, known as a “needs assessment.” The resulting report informs the projected funding requirements for the program as well as how infrastructure investments will be prioritized to expand access to recycling. Following that assessment, packaging “producers” take on primary compliance responsibilities. Depending on the state, “producers” may include not only the manufacturers of packaging, but also brand holders, distributors, licensees, importers, retailers, and wholesalers of those products. Responsibility to cover applicable fees for a specific piece of covered packaging falls on one of those entities based on the state’s cascading statutory or regulatory definition.[10] Producers comply with the law by joining an approved PRO, reporting the aggregate weight of the packaging they introduce into the market in that jurisdiction, and paying fees based on that reported weight. The PRO uses those fees to fund local recycling collection and material sorting infrastructure, recycling education programing, and other recycling efforts. Businesses selling the same product nationally may face different compliance obligations, reporting requirements, fee structures, incentives, and exemptions depending on the jurisdiction.

Oregon, Colorado, California, Maine, Minnesota, and Maryland have all adopted packaging EPR programs in various forms. Each state is at a different place in the needs assessment, PRO approval, fee collection, and fund distribution process. As implementation progresses, a series of legal challenges have been filed. These challenges typically focus on elements common to all EPR programs, including mandatory participation in a state-approved PRO, and fee-setting methodologies. Challengers also assert similar or identical legal theories. For example, challengers have consistently asserted that EPR laws exceed constitutional limits on state regulation of interstate commerce under the so-called dormant Commerce Clause, and that the laws delegate too much legislative authority to private entities responsible for administering the programs, in violation of both federal due process requirements and state constitutional requirements.

The litigation proceeding in Oregon, California, and Colorado illustrates how these issues are likely to dominate the next phase of packaging EPR implementation.

Oregon: The National Association of Wholesaler-Distributors’ Challenge to Oregon’s Plastic Pollution and Recycling Modernization Act

As one of the first movers in packaging EPR, Oregon has become a critical bellwether for legal challenges to EPR laws nationwide. In 2021, Oregon enacted the Plastic Pollution and Recycling Modernization Act (RMA), which was finally implemented on July 1, 2025. The state’s designated PRO, Circular Action Alliance, has already collected several rounds of fees and invested those fees into state and local recycling infrastructure.[11] Oregon is also farther along in enforcement of EPR laws. While formal enforcement has not yet begun, the Oregon Department of Environmental Quality (DEQ) has previewed an enforcement path. In April 2026, the agency published an inaugural producer status list identifying approximately 250 allegedly noncompliant producers.[12] Those and other noncompliant entities could face penalties of up to $25,000 per day.[13]

In July 2025, NAW filed its challenge to the RMA at the U.S. District Court for the District of Oregon. In its Amended Complaint, filed in October 2025, NAW argued that the law violates state and federal constitutional limits.[14] In February, the court dismissed NAW’s claim brought under the Equal Protection Clause of the Fourteenth Amendment, NAW’s claim of Unconstitutional Conditions, and all claims brought under the Oregon Constitution. The Court, however, permitted NAW to proceed on its theories that the RMA impermissibly burdens interstate commerce in violation of the dormant Commerce Clause, and impermissibly delegates significant program administration and fee-setting authority to Circular Action Alliance without sufficient procedural safeguards, in violation of the Due Process Clause.[15] The case gained significant attention when, in allowing these claims to proceed, the court granted a preliminary injunction preventing Oregon from enforcing the law against NAW members pending resolution of those claims.[16]

In July 2026, the court held a five-day bench trial. In August, after two rounds of post-trial briefing, the court issued a 71-page decision rejecting NAW’s arguments and upholding the constitutionality of Oregon’s law. [17] Because many of NAW’s claims attack structural features shared by EPR laws across multiple states, including the use of a single state-approved PRO, producer-funded fee systems, and broad definitions for “producers,” the court’s decision will likely have ramifications for similar cases challenging EPR laws in other states. [18]

California: Challenges from States, Industry, and Environmental NGOs

California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54) is among the most recently implemented packaging EPR laws, and it has perhaps the most sweeping impacts. It incorporates a PRO membership and funding structure similar to those in Oregon’s RMA, but unlike Oregon’s law, it also contains mandatory benchmarks for packaging recyclability, recycled inputs, and plastic reduction. Now several years into implementation, the state agency tasked with oversight—the Department of Resources Recycling and Recovery (also known as CalRecycle)—faces litigation from multiple directions.

In a June 2026 lawsuit filed in the U.S. District Court for the Eastern District of California seventeen state attorneys general joined NAW to challenge California’s packaging EPR program.[19] The Complaint asserts several claims overlapping with those asserted in the Oregon litigation. The plaintiffs claim that SB 54 exceeds constitutional limits by burdening interstate commerce, unconstitutionally delegates governmental authority to a private entity, impermissibly compels association with Circular Action Alliance via forced membership, and imposes other requirements that allegedly violate the U.S. Constitution. A recently filed Amended Complaint[20] incorporates a new theory: that California’s standards for recyclability render the law unconstitutionally vague in violation of Due Process principles. In so arguing, the plaintiffs invoke an injunction recently issued against a related (but distinct) California recycling labeling law. SB 54’s recyclability requirements cross-reference the standards set in that other environmental advertising law, known as SB 343. In that separate case, the U.S. District Court for the Southern District of California temporarily enjoined provisions of SB 343, finding that the plaintiffs there were likely to succeed on their claim that the law’s recyclability requirements are unconstitutionally vague.[21] The California case also involves several theories not asserted by NAW in its challenge to Oregon’s law, including violations of the Import-Export Clause and the First Amendment of the U.S. Constitution, and violations of the California Constitution. A hearing on the motion for a preliminary injunction is scheduled for January 15, 2027.

At the same time, environmental advocacy groups have filed separate litigation challenging SB 54’s implementing regulations.[22] According to these challengers, the regulations fail to satisfy SB 54’s strict statutory requirements. Rather than seeking to invalidate the law, these plaintiffs seek stronger implementation in the form of more aggressive regulations.

The state attorneys general and NAW recently filed a motion for preliminary injunction, with a hearing scheduled for January 2027. One question is whether, and to what extent, the court will look to Judge Simon’s recent decision upholding the constitutionality of Oregon’s EPR law when determining NAW’s likelihood of success on the merits of its claims. 

Colorado: The Next Front in Packaging EPR Litigation

Colorado has become the most recent flash point in packaging EPR litigation. In July 2026, NAW filed a complaint challenging Colorado’s Producer Responsibility Program for Statewide Recycling Act.[23] The suit closely tracks arguments previously advanced in Oregon and California. NAW alleges that Colorado’s law unlawfully delegates fee-setting authority to Circular Action Alliance, compels businesses to join and fund the organization, restricts certain communications regarding EPR-related fees, and deprives producers of adequate procedural protections. As it did in Oregon and California, NAW has sought preliminary injunctive relief while the merits of the case are litigated.[24]

As the only EPR challenge filed outside the Ninth Circuit, the Colorado litigation arrives after substantial implementation efforts have already occurred. The state has approved Circular Action Alliance’s program plan, producers have registered, and many producers have already paid fees to the program. Consequently, the litigation could create uncertainty for both producers seeking to comply with the law and local governments that are anticipating EPR funding for recycling infrastructure and collection programs. 

Next Steps

Packaging EPR laws have entered a new phase. What began as a legislative trend is now generating significant constitutional, administrative, and regulatory litigation. Courts will continue to weigh in on fundamental questions about state authority, interstate commerce, private administration of public programs, and the scope of producer obligations.

For manufacturers, brand owners, retailers, distributors, and importers, the immediate result is that litigation has not paused implementation. Companies should continue evaluating producer status, monitoring reporting and registration deadlines, assessing fee exposure, and participating in applicable PRO processes. At the same time, stakeholders across the broader recycling system should continue to monitor litigation in Oregon and other jurisdictions. The outcomes could determine whether significant investments will continue to be made in domestic recycling.

Please reach out to James Pollack, Michael Smith, or any member of Marten’s Consumer Products practice with any questions regarding packaging EPR litigation and compliance. 

[1] Marten filed an amicus brief on behalf of The Recycling Partnership, Inc. in this litigation. Amicus Brief of the Recycling Partnership, Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334 (June 30, 2026) [ECF 169], available at https://perma.cc/68BD-P5JD. The views reflected in this article do not represent the views of The Recycling Partnership or anyone beyond the authors.

[2] Plastic Pollution and Recycling Modernization Act, 2021 Or. Laws ch. 681 (S.B. 582) (effective Jan. 1, 2022), primarily codified at Or. Rev. Stat. §§ 459A.860–975.

[3] Plastic Pollution Prevention and Packaging Producer Responsibility Act, 2022 Cal. Stat. ch. 75 (S.B. 54) (effective Jan. 1, 2023), codified at Cal. Pub. Res. Code. §§ 42040–42084.

[4] Producer Responsibility Program for Statewide Recycling Act, 2022 Colo. Sess. Laws ch. 337 (H.B. 22-1355) (effective Aug. 10, 2022), codified at Colo. Rev. Stat. §§ 25-17-701 to -716.

[5]See James Pollack & Zack Zahner, States Enact Packaging Producer Responsibility Laws, Marten Law (July 22, 2024), https://martenlaw.com/news/states-enact-packaging-producer-responsibility-laws.

[6]See Maria Rachal, Oregon Judge Grants Wholesalers Preliminary Injunction in Packaging EPR Case, Wastedive (Feb. 9, 2026), https://www.wastedive.com/news/national-association-wholesalers-secures-preliminary-injunction-oregon-packaging-epr-law/811723/. See also Order, Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334 (Feb. 6, 2026) [ECF 88] (granting motion for preliminary injunction and enjoining enforcement of Oregon’s Plastic Pollution and Recycling Modernization Act against Plaintiff’s members); Order, Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334 (Apr. 6, 2026) [ECF 134] (clarifying scope of injunction).  

[7]Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334, 2026 U.S. Dist. LEXIS 193458 (D. Or. Aug. 27, 2026) (rejecting Plaintiff’s dormant Commerce Clause and Due Process challenges to Oregon’s Plastic Pollution and Recycling Modernization Act), available at https://perma.cc/Y3TL-6H9E.

[8] Plaintiffs’ Notice and Motion for a Preliminary Injunction, Nebraska v. Heller, No. 2:26-cv-02214-CKD (E.D. Cal. Aug. 19, 2026) [ECF 43].

[9]See Circular Action Alliance, About Circular Action Alliance, https://circularactionalliance.org/about.

[10] While most state laws prioritize brand holders for responsibility, there are options available to allocate responsibility in other ways. For example, under Oregon’s law, a producer held responsible under the law to cover a packaging fee may contract with other entities in the supply chain to allocate a portion of the fee to other entities. 

[11] Circular Action Alliance, Oregon – Annual Report 2025, available at https://recycleon.org/wp-content/uploads/2026/07/CAA-AnnualReport25-Oregon.pdf.

[12]Or. DEQ, Recycling Modernization Act – Producer Status List (Apr. 9, 2026), available at https://perma.cc/SBM5-E8RH.

[13] Or. Rev. Stat. §§ 459A.962(4).

[14] First Amended Complaint for Declaratory and Injunctive Relief, Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334 (Oct. 27, 2025) [ECF 26].

[15]See Order, Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334 (Feb. 6, 2026) [ECF 88].

[16]See id.; Order, Nat’l Ass’n of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334 (Apr. 6, 2026) [ECF 134] (clarifying scope of injunction). 

[17]Nat’l Assoc. of Wholesaler-Distribs. v. Feldon, No. 3:25-cv-01334, 2026 U.S. Dist. LEXIS 193458 (D. Or. Aug. 27, 2026), https://perma.cc/Y3TL-6H9E.

[18] While NAW’s lawsuit was pending, an additional challenge to the RMA was filed in Oregon. On June 25, 2026, Lollicup USA, Inc. filed a putative class action in federal court against the Director of Oregon DEQ. See Class Action Allegation Complaint, Lollicup USA, Inc. v. Feldon, No. 3:26-cv-01287-SI (June 25, 2026) [ECF 1]. The lawsuit similarly seeks to bar enforcement of the Oregon EPR law against a proposed class of producers left unprotected by the limited preliminary injunction in the NAW lawsuit. In a joint motion filed in mid-July, the parties acknowledged that the legal issues in Lollicup’s lawsuit mirrored those raised in the NAW case and moved to extend case deadlines pending resolution of that case. In that motion, the parties acknowledged that the decision in the NAW case “could be determinative on whether [Lollicup] continues to pursue its legal claims or . . . might pursue a preliminary injunction,” and “may also influence whether Defendant files a motion to dismiss, answers the Complaint, or the parties come to another agreed disposition.” See Joint Motion to Extend Deadlines and to File a Joint Status Report Following This Court’s Decision in a Related Case, Lollicup USA, Inc. v. Feldon, No. 3:26-cv-01287-SI (July 16, 2026) [ECF 9]. The court granted the motion, which requires the parties to file a joint status report by September 10. 

[19] Complaint for Declaratory and Injunctive Relief, Nebraska v. Heller, No. 2:26-cv-02214-CKD (E.D. Cal. June 22, 2026) [ECF 1].

[20] First Amended Complaint for Declaratory and Injunctive Relief, Nebraska v. Heller, No. 2:26-cv-02214-CKD (E.D. Cal. Aug. 19, 2026) [ECF 42].

[21]See Cal. League of Food Prods. v. Bonta, No. 3:26-cv-01675, 2026 WL 2055589, 2026 U.S. Dist. LEXIS 160130 (S.D. Cal. July 14, 2026). 

[22] First Amended Petition for a Writ of Mandate and Complaint for Declaratory and Injunctive Relief, Nat. Res. Def. Council Inc. v. Dep’t of Res. Recycling & Recovery, No. CPF-26-519769 (Cal. Super. Ct. July 23, 2026).

[23] Complaint for Declaratory and Injunctive Relief, Nat’l Ass’n of Wholesaler-Distribs. v. Ryan, No. 1:26-cv-03460 (D. Colo. July 30, 2026) [ECF 1].

[24] Plaintiff’s Motion for Preliminary Injunction, Nat’l Ass’n of Wholesaler-Distribs. v. Ryan, No. 1:26-cv-03460 (D. Colo. Aug. 5, 2026) [ECF 11].