NAW Appeals Oregon Packaging EPR Decision to Ninth Circuit

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The National Association of Wholesaler-Distributors (NAW) has appealed the first-ever merits ruling on extended producer responsibility (EPR) program for packaging, the trade association announced on September 24, 2026.

The appeal, before the Ninth Circuit, challenges the District of Oregon’s decision upholding Oregon’s Plastic Pollution and Recycling Modernization Act. The outcome could have major ramifications for packaging EPR programs enacted by other states.

The appeal will focus on the dormant Commerce Clause and Due Process Clause claims NAW raised before the district court. In a 71-page ruling issued August 27, 2026, the court rejected those claims and upheld Oregon’s EPR program. The court’s analysis is discussed in detail in a previous post.

In the press release, NAW argues that the program imposes fees on wholesaler-distributors who do not control the packaging or final destination of their products. NAW also contends that Oregon regulators “anticipated producers would recover program costs from customers in other states, and cited that as a way to reduce price impacts on Oregonians.”

NAW further alleges that the producer responsibility organization (PRO) charged with implementing the program has “its own business interests,” calculated fees using a confidential methodology, and collected millions of dollars in excess funds.

“The Ninth Circuit reviews questions of law without deference to the district court,” NAW adds.

Before issuing its final decision, the district court granted a preliminary injunction enjoining enforcement of the scheme against NAW’s members and conducted a five-day bench trial.

The appeal is National Association of Wholesaler-Distributors v. Feldon, No. 26-6404 (9th Cir.), docketed September 30, 2026. The originating case is No. 3:25-cv-1334 (D. Or.). NAW’s opening brief is due December 17, 2026, and Oregon’s response is due January 18, 2027.

Oregon Packaging EPR Program Survives Constitutional Challenge

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In a lengthy ruling with significant implications for similar schemes across the country, a federal judge has upheld Oregon’s extended producer responsibility (EPR) program for packaging, printing, and food serviceware, holding that it does not violate the U.S. Constitution’s dormant Commerce Clause or Due Process Clause.

Oregon is one of seven states to have enacted a packaging EPR program, which require manufacturers to pay volume- and material type-based fees to cover the costs of managing packaging waste. Litigation challenging California’s and Colorado’s programs is also ongoing. Those cases involve the same plaintiff, the National Association of Wholesaler-Distributors (NAW), as well as other plaintiffs.

Prior to issuing its August 27, 2026, decision, the court granted a preliminary injunction enjoining enforcement against NAW’s members and conducted a five-day bench trial. NAW has issued a statement saying that the trade association is “consider[ing] its next steps.”

Dormant Commerce Clause

NAW advanced three theories under the dormant Commerce Clause, arguing that that Oregon’s Recycling Modernization Act (RMA) (1) discriminates against interstate commerce, (2) imposes an unreasonable “user fee,” and (3) places an undue burden on interstate commerce.

Discrimination. Finding insufficient evidence of purposeful discrimination, the court considered whether the RMA is facially discriminatory. NAW argued that the scheme grants preferential “small producer” status to certain in-state governmental entities like the University of Oregon but not to similar out-of-state institutions. As a result, NAW alleged, obligated producers must pay more than their fair share of the program’s costs.

The court rejected this “free riding” argument for several reasons. Among them, the court found that NAW’s alleged injury would be the same regardless of which entity received the exemption. The court also held that in-state public entities “are not ‘similarly situated’ to out-of-state public entities, which do not support Oregon’s infrastructure.”

NAW separately argued that other small-producer criteria discriminate in effect. For example, an interstate business with global revenues above $5 million—but Oregon revenues below $5 million—would not qualify as a small producer, whereas a company solely doing business in Oregon with revenues under that threshold would. However, even if costs are borne primarily by out-of-state consumers, that does not make a scheme discriminatory in effect, the court held.

Unreasonable user fee. NAW’s “free rider” theory was also central to its unreasonable fees claim. The court, however, found the evidentiary record insufficient to establish that the exemptions resulted in an unreasonable fee. Because “no one” “has attempted to quantify the effects of any exemptions,” the court cannot determine whether these exemptions apply “with significant frequency,” the decision states.

A separate line of attack focused on the fees collected by the Circular Action Alliance (CAA), the nonprofit producer responsibility organization (PRO) that is implementing the program. While CAA collected $90 million more than it spent in 2025, the court held that is not “clearly excessive” because the excess was due to uncertainties and may reduce future fees.

Undue burden. NAW argued that the court should employ the balancing test established in Pike v. Bruce Church, Inc., which assesses whether a law’s burdens on interstate commerce are “clearly excessive in relation to [its] putative local benefits.” However, the court found the test inapplicable, noting that it is generally not applied unless a statute is discriminatory or is shown to impose a substantial or significant burden on interstate commerce. Anecdotal evidence that NAW’s members will face substantial costs is not enough, the court held, emphasizing that Pike protects the market as a whole—and not specific interstate firms—from burdensome regulations.

In any event, the court concluded that the RMA would survive Pike balancing even if the test applied. Oregon, the court found, “has a great and longstanding interest in protecting its citizens from the externalities created by waste and products at the end of their life, including plastics and other hard-to-recycle materials.”

Due Process Clause

NAW’s due process claims focused primarily on CAA’s role in administering the regulatory scheme. Although the RMA permits multiple PROs, CAA is currently the only PRO approved to implement the program.

Assuming without deciding that the RMA implicates a property interest protected by the Due Process Clause, the court first addressed NAW’s argument that the statute improperly delegates regulatory authority to CAA, including the power to regulate competitors.

That argument stems from allegations that CAA is controlled by certain large manufacturers who influence producer fees. But “because the RMA does not obligate NAW’s members to join CAA, CAA’s self-interestedness, [Oregon’s] review of CAA’s fee-setting methodology, and CAA’s contracts are not relevant to NAW’s due process challenge,” the decision states.

The court emphasized that producers are free to form their own PRO, even if doing so presents “practical difficulties.” Producers may also take advantage of the RMA’s “private recycling rule,” which exempts products recycled outside the comingled recycling stream and therefore provides an alternative to joining a PRO. Even with respect to CAA, the court found that Oregon retained sufficient decision-making authority because the state ultimately approved CAA’s fee-setting methodology.

The court also rejected arguments that the RMA fails to provide procedural safeguards against unlawful assessments and exactions of membership fees, holding that NAW’s members voluntarily relinquished their rights by joining CAA. The court further concluded that the RMA provides sufficient safeguards, noting in part that evidence presented at trial showed that CAA, Oregon, and individual producers “have been able successfully to resolve fee disputes informally.”

The case is National Association of Wholesaler-Distributors v. Feldon, No. 3:25-cv-1334 (D. Or.), filed July 30, 2025.

California Finalizes Packaging EPR Regulations Under SB 54

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California has finalized regulations implementing the state’s extended producer responsibility (EPR) program for packaging, more than a year after the governor directed CalRecycle to restart the rulemaking process over cost concerns.

The final rule, approved May 1, 2026, implements California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54), passed in 2022.  Despite the delay, the program’s source reduction and recyclability targets remian unchanged:

  • 2027: 10% reduction in single-use plastic
  • 2028: 30% of single-use plastic recycled
  • 2030: 20% reduction in single-use plastic; 40% recycled
  • 2032: 25% reduction in single-use plastic; 65% recycled; 100% of packaging recyclable or compostable

On the same day, the state’s inaugural producer responsibility organization (PRO), Circular Action Alliance (CAA), published an illustrative fees document with low- and high-end fee estimates across covered material categories.  Producer fees will fund:

  • Program operating costs
  • Source reduction and reuse and refill initiatives
  • A requirement that the PRO remit $500 million annually to the state from 2027 through 2037

The next major milestone is June 15, 2026, when CAA will submit its draft program plan to the SB 54 advisory board.  CAA says it intends to publish final fee rates in the plan, which is expected to be finalized in October 2026.

CalRecycle has also published a webpage with guidance for producers, covering reporting obligations, covered material identification, and producer status determinations.  Additional guidance on exemptions, extensions, and exclusions is forthcoming.

Key Deadlines for Producers

According to CalRecycle, the May 1 final rule triggered a June 1, 2026, deadline for producers in California to do one of the following:

  • Register with CAA if participating in the approved PRO plan
  • Register with CalRecycle and apply as an independent producer if complying individually
  • Register with CalRecycle and apply for the small producer exemption if gross California sales were under $1 million in the most recent year

Another just-passed deadline was May 31 for producers in California to submit two 2025 reports: (1) an annual supply report with supply data by covered material category, and (2) an annual source reduction report covering source reduction activities.  Reports may be submitted to CAA or directly to CalRecycle through the agency’s new online portal, known as PEPRS.

In addition, producer-specific individual source reduction plans will be due sometime this summer, likely August 1.

Finally, May 31 was also the deadline for producers to submit simplified supply reports to CAA for Washington, Maryland, and Minnesota, reflecting an effort to standardize reporting deadlines across states with packaging EPR programs.

For more information, visit CAA’s website and CalRecycle’s SB 54 webpage.

Court Enjoins Oregon Packaging EPR Law in NAW Challenge

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On February 6, 2026, the Oregon District Court granted a preliminary injunction in a challenge to Oregon’s packaging extended producer responsibility (EPR) scheme while dismissing other claims without prejudice.

The one-paragraph order bases the injunction on the plaintiff’s dormant Commerce Clause and due process claims.  Those claims allege that the scheme unduly restricts interstate commerce and delegates unprecedented regulatory authority to a producer responsibility organization (PRO).

“Serious questions go to the merits of Plaintiff’s claims, there is a likelihood of irreparable injury, and the balance of hardships tips sharply in favor of Plaintiff,” the court wrote.  “The Court therefore enjoins Defendant Leah Feldon from enforcing the Plastic Pollution and Recycling Modernization Act against Plaintiff National Association of Wholesale Distributors [(NAW)] and its members.”

The court dismissed NAW’s remaining claims, including its equal protection claim, unconstitutional conditions claim, and claims brought under the Oregon Constitution.  It also dismissed all claims against four Oregon officials, which the state argued were barred by the Eleventh Amendment.

NAW has until February 20, 2026, to replead the dismissed claims.  In a separate docket entry, the court set a five-day court trial to begin July 13, 2026.

The case is National Association of Wholesaler-Distributors v. Feldon, 25-cv-1334 (D. Or.), filed July 30, 2025.  A prior post discussing the motion for a preliminary injunction and motion to dismiss is available here.

Oregon Defends Packaging EPR Program, Argues Court Lacks Jurisdiction

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Oregon Environmental Quality Commission (EQC) officials are asking a federal court to dismiss a challenge to the state’s extended producer responsibility (EPR) law and implementing regulations, arguing that the court lacks subject-matter jurisdiction.

The motion to dismiss, filed December 22, 2025, comes after the plaintiff, the National Association of Wholesaler-Distributors (NAW), asked the District Court for the District of Oregon to halt the program on November 24, 2025.

According to the defendants, the Eleventh Amendment bars NAW from bringing suit against EQC officials.  While an exception to sovereign immunity exists for suits seeking prospective injunctive relief, the defendants contend that the named officials do not fall within the exception because they do not directly enforce the law.

“Absent allegations that EQC has an enforcement role or is continuously engaging in some activity that violates federal law, Plaintiff has not and cannot establish that the Ex parte Young exception should apply to the EQC Defendants,” the motion reads.

Enforcement authority, the defendants contend, rests with Oregon’s Department of Environmental Quality (DEQ), while EQC’s role is limited to promulgating administrative rules that “guide DEQ in its…administration” of the program.  Although both EQC and DEQ were named in NAW’s original complaint, the association removed the agencies as defendants in an amended complaint filed October 27, 2025.

The defendants also argue that the Eleventh Amendment precludes NAW’s state-law claims from being heard in federal court.

Oregon’s packaging EPR program, which launched July 1, 2025, is the first such program to take effect nationwide.  Many of its obligations are currently fulfilled by a single producer responsibility organization (PRO), Circular Action Alliance (CAA), though DEQ is authorized to approve additional PROs.

Last month, the Small Business Administration’s Office of Advocacy called for the federal government to preempt the program, citing concerns about interference with interstate commerce, the state’s delegation of authority to CAA, and the confidential methodologies used by CAA to calculate producer fees.

Merits Arguments

NAW raises similar concerns in its amended complaint, arguing that the program “produces unreasonable, arbitrary, and crushing burdens, including on wholesalers and distributors who are essential to moving products from manufacturers to Oregon consumers,” in part due to the delegation of  “essential regulatory authority to a private, third-party organization.”  CAA “has been granted wide discretion to apply a confidential methodology for setting fees, to establish other criteria and incentives for certain producers, and to penalize producers of certain materials,” NAW contends.

NAW alleges several constitutional violations.  After contesting the court’s jurisdiction, the defendants’ motion to dismiss addresses each, arguing that all fail to state a plausible claim for relief.

First, the motion challenges NAW’s dormant Commerce Clause claim, asserting that the program does not discriminate against interstate commerce.  “Increased compliance costs, even if borne largely by out-of-state businesses, do not amount to discrimination,” the defendants argue.  Nor, they add, does the program “establish a substantial or an excessive burden on interstate commerce, regardless of whether it is compared to the putative local interests.”

The defendants also contend that the program does not have impermissible extraterritorial effects because it “does not force any producer to make any product or packaging design, sourcing, or distribution decisions.”

The motion next addresses NAW’s unconstitutional conditions claim, which alleged that producers are compelled to surrender “freedom of contract and due process protections” when joining CAA.  In response, the defendants note that the law allows NAW’s members to form their own PRO, arguing that participation in CAA is a matter of choice.

NAW further argues that delegating fee-setting authority to CAA violates its members’ procedural due process rights.  The defendants counter by pointing to statutory safeguards that provide “opportunity for public input and continuing DEQ oversight” of the fees program.  These include DEQ approval of PRO program plans and fee methodologies, as well as annual reporting requirements.

Finally, the motion argues that Oregon has a rational basis for exempting small producers and does not unlawfully discriminate between mid-sized and large producers, rebutting NAW’s equal protection claim.

The case is National Association of Wholesaler-Distributors v. Feldon, 25-cv-1334 (D. Or.), filed July 30, 2025.

Colorado Proposes Amendments to EPR Regulations to Implement Eco-Modulation

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The Colorado Department of Public Health and Environment (CDPHE) has released a proposed rule to introduce eco-modulation—a system that lowers dues for producers who meet specific sustainability incentives under the state’s extended producer responsibility (EPR) program for packaging.

Under Colorado’s EPR program, producers of packaging and paper products will begin paying dues to a producer responsibility organization (PRO) in January 2026 and annually thereafter.  When CDPHE first adopted its implementing regulations in June 2024, it left the eco-modulation criteria undefined.  The new proposal fills in those details.

Like other state packaging EPR laws, Colorado’s program aims to shift recycling costs from taxpayers to producers.  Through a PRO, producers are responsible for expanding recycling access, increasing recycling rates, and funding the recycling system.

Eco-Modulation Benchmarks

The proposed rule establishes several voluntary benchmarks that allow producers to reduce their dues by achieving certain environmental performance goals:

  • On-package sorting criteria: Inclusion of sorting instructions and guidance directly on packaging.
  • Local end use: Use of materials that are on the state’s “minimum recyclable” list, contain at least 20% US-generated postconsumer-recycled content, and are utilized by an end-market business in Colorado.
  • Compostability: Use of a material that meets ASTM standards for compostability and complies with certain labeling requirements.
  • Case study: Development of a case study demonstrating measurable benefits to recyclability, waste reduction, or other environmental outcomes for a covered material.

Each benchmark achieved earns producers a 1% reduction in dues for each qualifying material.  Bonuses will be applied to 2027 invoices and all invoices thereafter, except the on-package sorting benchmark, which will only be available starting in 2029.

The proposal additionally provides a pathway for producers to dispute the final application of eco-modulation factors to their dues, and eliminates a requirement that producers “submit documents and records to the PRO if they believe they are exempt from covered material.”

According to CDPHE’s website, the public comment period for the rulemaking ended September 28, 2025.  However, the page states that the Solid & Hazardous Waste Commission is currently accepting comment, and “strongly encourages” that comments be submitted by November 7.  CDPHE will present the commission with its proposed amendments on November 18, 2025.

The statement of purpose accompanying the proposed rule can be found here.

California Packaging EPR Rulemaking Resumes With Key Deadlines Ahead

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On August 22, 2025, CalRecycle published proposed regulations to implement California’s SB 54, which imposes a state extended producer responsibility (EPR) program for single-use packaging and plastic food service ware.  Public comments on the proposal are due October 7, 2025, the same day CalRecycle will hold a hybrid public hearing.

The rulemaking is CalRecycle’s second attempt to implement SB 54.  In March 2025, California Governor Gavin Newsom directed CalRecycle to restart the rulemaking process, citing concerns with its costs.

What does SB 54 Require?

SB 54 is designed to shift the burden of plastic pollution from consumers to producers, which are “typically the companies that create—or package their products in—single-use packaging and single-use plastic food service ware,” according to CalRecycle.  Beginning in 2027, producers will pay fees totaling $500 million per year to offset recycling costs and environmental impacts.

By 2032, all covered materials must be recyclable or compostable, and at least 65% must actually be recycled.  SB 54 also mandates a 25% source reduction in plastic covered material compared to 2023.

Upcoming Compliance Deadlines for Producers

Producers face several near-term obligations under the program:

  • September 5, 2025: Deadline to register with California’s inaugural producer responsibility organization (PRO), Circular Action Alliance (CAA), which will oversee program administration and fee collection.
  • September 15, 2025: CAA opens its reporting portal.
  • November 15, 2025: Deadline to submit 2023 supply data through the portal.

As discussed in a previous blog post, an increasing number of states are implementing packaging EPR laws.  Our team is available to help businesses navigate this evolving regulatory landscape.

EPR Packaging Laws: Key Requirements and Compliance Challenges

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A significant regulatory shift is underway across the United States as multiple states adopt extended producer responsibility (EPR) laws targeting packaging waste.  In 2025, Maryland and Washington State joined a growing list of jurisdictions—including Maine, Oregon, Colorado, California, and Minnesota—that now require producers of packaged goods to engage in one or more of the following: funding or managing recycling programs, reporting material use, and meeting eco-design standards.

Under these laws, companies that introduce packaged goods into covered states often must register with a producer responsibility organization (PRO), submit detailed data on packaging materials, and pay eco-modulated fees based on environmental characteristics such as recyclability, toxicity, and use of post-consumer recycled content.  Maryland’s law is particularly notable for permitting multiple PROs, opening the door to competitive service models.  Washington’s SB 5284, enacted in May 2025, emphasizes equitable access to recycling across rural and underserved communities.

Key elements across state EPR packaging laws include:
  • Mandatory producer registration with PROs or state authorities
  • Annual data submissions on packaging volume, format, and materials
  • Fee structures that reward low-impact design, such as compostability or reusability
  • Coverage of a broad range of industries, including food and beverage, e-commerce, and personal care
  • Implementation timelines beginning in 2025 and accelerating through 2030

Companies should anticipate increased scrutiny of packaging design and growing complexity in compliance as additional states consider EPR legislation.  The resulting patchwork of state requirements will demand careful monitoring and tailored compliance strategies.

Preparing for What’s Ahead

As this regulatory landscape evolves, many companies are beginning to review packaging portfolios, evaluate data collection capabilities, and consider how these rules may affect their compliance, contracting, and product design strategies.  Early engagement with legal, regulatory, and sustainability advisors may help manage risk and identify business opportunities in a more circular packaging economy.

Our team continues to monitor these developments closely and is available to assist with compliance planning, legal analysis, and multi-state tracking strategies tailored to your operational footprint.

Coca-Cola Wins Greenwashing Case

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The DC Superior Court has granted Coca-Cola Company’s motion to dismiss a 2021 lawsuit filed against it for false and deceptive marketing practices. Plaintiffs argued that the company had falsely represented itself as a sustainable and environmentally friendly company. The 2021 Complaint alleged that Coca-Cola’s representations violate the District of Columbia Consumer Protection Procedures Act (“DC CPPA”) because its marketing and advertising “tend to mislead and are deceptive about the true nature and quality of its products and business.”

The Complaint stated that the marketing is false and deceptive because the company “portrays itself as ‘sustainable’ and committed to reducing plastic pollution while polluting more than any other beverage company and actively working to prevent effective recycling measures in the U.S.” The Complaint cites numerous examples, including:

  • A statement on the Coca-Cola website stating, “Our planet matters. We act in ways to create a more sustainable and better shared future. To make a difference in people’s lives, communities and our planet by doing business the right way.”
  • A statement on the company website stating, “Make 100% of our packaging recyclable globally by 2025. [And] [u]se at least 50% recycled material in our packaging by 2030.”
  • A statement on the company’s Twitter account stating, “Scaling sustainability solutions and partnering with others is a focus of ours.” “Make 100% of our packaging recyclable globally by 2025. [And] [u]se at least 50% recycled material in our packaging by 2030.”

Coca-Cola filed a motion to dismiss in response. The DC Superior Court found that Coca-Cola’s statements were aspirational in nature and, therefore, not a violation of the DC CPPA. The Court stated that Earth Island Institute had not alleged that any statement made by Coca-Cola was provably false or plausibly misleading or that the company misled consumers as to its products’ characteristics. The Court acknowledged that Coca-Cola may have failed to meet advertised environmental goals in the past, but that does not impede its ability to set future environmental goals publicly.  In addition, the Court held that Coca-Cola’s statements were not tied to a “product or service” as required by DC CPPA. None of the statements were included on the bottle of any product or in the marketing of any product. Furthermore, the Court determined that Coca-Cola’s statements are not sufficient to create a misleading “general impression” or a “mosaic of representations” to a reasonable DC consumer as a matter of law under the DC CPPA.

The Court further stated that the Complaint could not prevail because it was based on how Coca-Cola has branded itself, and the DC CPPA does not have any controlling authority on how a brand cultivates its image. Coca-Cola made no specific environmental commitments, which further made it difficult for the Court to take any action. The Court stated that in other similar cases, companies made claims such as “100% recycled and recyclable bottles,” which is concrete and indicative of a promise to customers, as opposed to vague aspirational statements from Coca-Cola, such as the recyclable packaging by 2025.

Federal Trade Commission Seeks Comment on Green Guides

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The Federal Trade Commission (FTC) released a request for public comment on updating its  Guides for the Use of Environmental Marketing Claims (“Green Guides”), which provides guidelines for businesses that want to use environmental marketing claims in their advertising and labeling. The Green Guides aim to help businesses avoid making deceptive or misleading environmental. This includes assisting businesses in determining how consumers are likely to interpret specific claims and how to substantiate environmental claims.  In addition, the Green Guides present options for qualifying claims to avoid deception.

The Commission reviews the Green Guides every ten years, with the last review occurring in. Accordingly, FTC is now seeking comments on the Green Guides to ensure they continue providing helpful guidance for businesses and consumers.

In its request for public comment, the Commission has requested feedback by providing approximately 40 questions as prompts. The questions focus on what FTC Chair Lina M. Khan describes as “relatively emerging environmental topics” and businesses’ views on the Green Guides’ value. Topics include:

  • The use of environmental marketing claims in the context of emerging technologies and market trends, such as ozone friendly/safe, carbon offsets, recyclability, and energy efficiency, and whether the Green Guides should be updated in addressing these areas.
  • The impact of the Green Guides on small businesses, including any challenges or benefits that small businesses have experienced as a result of following the guidelines.
  • The extent to which the Green Guides are consistent with international guidelines and standards for environmental marketing claims.
  • Any additional guidance or clarification that the FTC could provide to help businesses make accurate and non-deceptive environmental marketing claims.

FTC also asks for comment on whether the Guides overlap or conflict with other federal, state, or local laws or regulations, and if so, how?

Additionally, the Commission requests comments on the Guides’ interaction with other environmental marketing regulations and whether the Commission should consider rulemaking to establish independently enforceable requirements related to unfair and deceptive environmental claims.

The Federal Register notice also discusses the types of information that the Commission would find helpful regarding specific environmental marketing claims, including carbon offsets and climate change, degradable, and recyclable.

The Agency is accepting comments until February 21, 2023. You can submit your comments online here.