Trade Association Challenging Oregon’s and California’s Packaging EPR Programs Sets Its Sights on Colorado With a New Federal Lawsuit

On July 30, 2026, the National Association of Wholesaler-Distributors (NAW) filed a lawsuit in federal court in Colorado challenging the constitutionality of Colorado’s packaging extended producer responsibility (EPR) program. The complaint in National Association of Wholesaler-Distributors v. Ryan names Colorado Department of Public Health and Environment (CDPHE) Executive Director Jill Hunsaker Ryan in her official capacity and targets Colorado’s Producer Responsibility Program for Statewide Recycling Act (the Colorado Act), HB 22-1355. On August 5, 2026, NAW moved for a preliminary injunction seeking to bar enforcement of the Colorado Act and defer the EPR payment obligations of NAW and its members. NAW asked the court to treat the motion on an expedited basis. Defendant’s response is due September 16, 2026.

This is NAW’s third challenge to state packaging EPR programs; NAW has filed challenges to Oregon’s and California’s programs as well. The suit in Oregon went before the court in a bench trial last month and a decision is pending. In California, NAW joined with 17 state attorneys general in late June 2026 to file a lawsuit challenging the California program. This is also the second legal challenge to Colorado’s EPR program. In March 2026, another trade association — the Independent Lubricant Manufacturers Association — brought state law and constitutional challenges to the EPR program in Colorado state court.

How Do the Colorado Claims Compare to the Oregon and California Challenges?

In the Colorado litigation, NAW asserts five constitutional claims, three of which allege theories similar to those NAW pleaded in its Oregon and California lawsuits. Count I alleges that delegating fee-setting authority to Circular Action Alliance (CAA) violates Fourteenth Amendment due process, including because of alleged conflicts of interest on CAA’s board. NAW claims that CAA is controlled by representatives of founding members that include NAW members’ competitors, along with retailers and suppliers with an interest in shifting program costs onto distributors. Count III alleges a Dormant Commerce Clause violation on two theories: that the act discriminates against interstate commerce because its tiered definition of “producer” concentrates obligations on out-of-state brand owners while its exemptions favor primarily in-state interests, and that its burdens on interstate commerce clearly exceed the local benefits Colorado could obtain by less costly means. In the Oregon litigation, the Due Process and Commerce Clause claims were the two theories to survive the defendant’s motion to dismiss and that went to trial last month. Notably, NAW’s preliminary injunction motion presses only the undue-burden portion of its Commerce Clause theory; it does not argue at this stage that the Colorado Act facially discriminates against interstate commerce.

Count II asserts an unconstitutional-conditions claim — a legal theory that the Oregon federal court dismissed — but with a somewhat different emphasis than the Oregon claim. As in Oregon, the Colorado complaint argues that conditioning producers’ access to the Colorado market on signing non-negotiable agreements with CAA that contain mandatory arbitration clauses forces producers to give up both due process and the right to bring claims in federal court, but it additionally argues that dues bearing no rough proportionality to a producer’s actual impact on the state operate as an unconstitutional exaction rather than a fee.

Counts IV and V have no counterpart in Oregon, but are similar to claims that NAW asserted in the California litigation and that the Independent Lubricant Manufacturers Association asserted in the pending state court challenge to the Colorado program. Count IV challenges Colo. Rev. Stat. § 25-17-714, which prohibits producers from charging point-of-sale or point-of-collection fees to consumers to recoup the costs of complying with the packaging EPR program. NAW alleges that, although producers remain free to raise prices generally, the provision’s practical effect is to bar them from communicating the reason for those price increases — i.e., the state’s decision to impose fees under the EPR program — to their customers. In its motion for a preliminary injunction, NAW frames this as a content-based restriction subject to strict scrutiny, relying on decisions holding that bans on itemizing taxes and surcharges on customer invoices regulate how a price increase is communicated rather than the price itself. Finally, Count V alleges that requiring producers to join CAA, and to fund its advocacy for EPR laws and for its own role administering them, compels both speech and association in violation of the First Amendment. Count V is similar to an argument NAW raised in the California lawsuit.

Where Do Things Stand in Oregon and California?

The Oregon litigation remains the furthest ahead of the packaging EPR challenges. NAW v. Feldon was tried before Judge Simon from July 13 to 17, 2026, in the first trial testing the constitutionality of a state packaging EPR law. Post-trial briefing on the court’s due process questions was submitted July 31. In its post-trial briefing, Oregon for the first time argued that the court should abstain from deciding NAW’s challenges under the Pullman and Burford doctrines. NAW requested oral argument and leave to file a supplemental brief if the court were inclined to consider those arguments. On August 4, 2026, the court declined to hear oral argument, finding it unnecessary. It instead ordered supplemental briefing on a single, narrower question: whether the Oregon program’s “small producer” exemption for Oregon public bodies is facially discriminatory under the Dormant Commerce Clause — an argument that NAW had raised in its post-trial briefing. Oregon’s brief is due August 7 and NAW’s response August 10, each limited to five pages. The court did not request further briefing on the abstention arguments. Because the Colorado complaint asserts Due Process and Commerce Clause arguments similar to those presented in Oregon, a merits ruling there — although not binding in Colorado — is likely to be cited and considered in the forthcoming proceedings on NAW’s preliminary injunction motion in Colorado.

In contrast, the California packaging EPR litigation — which was only filed in late June — remains at a very early stage. Defendants in that case have not yet appeared, and no motion for a preliminary injunction has yet been filed.

What Does This Mean for Producers?

Nothing about the most recent Colorado challenge changes current obligations. As of publication, no court order has stayed the Colorado program. CAA issued invoices for dues beginning in January 2026, and the Colorado Act authorizes administrative penalties not to exceed $5,000 for the first day of a first violation and $1,500 for each continuing day. Those penalties rise to $10,000 and $3,000 for a second violation within 12 months, and $20,000 and $6,000 for a third or subsequent violation. It would be prudent for producers to continue planning for compliance on the assumption the program remains in effect. NAW’s motion for a preliminary injunction also highlights a related risk: it argues that dues already paid may prove unrecoverable, because sovereign immunity bars damages against the state and CAA spends producer dues as they are received.

Producers weighing potential engagement in the Colorado litigation should note that Oregon’s preliminary injunction in the NAW litigation reached only the plaintiff association and its members as of the date the injunction issued. No Colorado injunction has been entered yet, and the preliminary injunction NAW sought in its August 5 motion asks that defendant be enjoined “from enforcing the [Colorado] Act and regulations promulgated thereunder, and to take such steps as necessary to defer the EPR payment obligations of NAW’s members.” Thus, even if an injunction is entered, it is not clear that it would reach producers who are not members of NAW. Producers seeking protection from enforcement while the constitutionality of Colorado’s program remains in flux thus might consider possibilities such as joining NAW, intervening in the litigation, or filing their own litigation seeking relief expressly applicable to them. Indeed, in Oregon, a producer who fell outside the scope of the NAW injunction filed a putative class action challenging the Oregon program and was able to secure a temporary, voluntary delay of enforcement action initiation from the state pending a decision in the related NAW litigation.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.