On July 30, 2025, the National Association of Wholesaler-Distributors (NAW) filed a lawsuit in federal court challenging Oregon’s Extended Producer Responsibility (EPR) law, the Plastic Pollution and Recycling Modernization Act (the Act). The Act generally requires producers of covered products sold or distributed in Oregon to register with and join a state-approved Producer Responsibility Organization (PRO), which administers the EPR program and assesses applicable fees. Producers must also enter into a non-negotiable contract with the PRO. To date, the Circular Action Alliance (CAA) is the only PRO approved by Oregon.

In its amended complaint against the Director of the Oregon Department of Environmental Quality (DEQ), NAW requested the District Court declare the Act unconstitutional and void.

On July 13, 2026, the parties commenced a five-day court trial, and on August 27, 2026, the Court entered its findings of fact and conclusions of law, ultimately deciding to uphold the constitutionality of Oregon’s EPR law and framework.

In its decision, the Court noted “few material facts are truly disputed by the parties and that the issues in this case are, for the most part, questions of law.” On the questions of law, the Court concluded that NAW’s challenge of Oregon’s EPR law under the dormant Commerce Clause and Due Process Clause were without merit.

On the Commerce Clause question, the Court found the Act did not purposefully discriminate against interstate commerce and that it was not discriminatory in effect. It also found NAW’s members did not show injury in fact, and as a result, did not have standing to allege a facial discrimination claim. The Court also concluded the Act’s user fees on producers were not excessive and the Act did not place an undue burden on interstate commerce because the supply chain burdens were not “clearly excessive” in relation to the putative benefits to the state.

On the Due Process Clause question, the Court concluded no protected life, liberty or property interest was implicated by NAW’s private nondelegation challenge to the Act. It also concluded the process for NAW’s members to challenge membership fees and penalties passed constitutional muster. Accordingly, the Act did not violate the Due Process clause.

While this decision may be appealed, we expect ramifications outside of Oregon, as it is likely to provide a template for similar arguments advanced by states and PROs in other cases. Judges from other jurisdictions may cite to and rely on this decision when confronted with similar constitutional arguments. 

The ruling may also embolden the DEQ and other state agencies to commence enforcement actions under EPR laws. The CAA posted a list of alleged noncompliant parties earlier this year. Notably, the DEQ stated it planned to publish an updated list of noncompliant parties in 2026, which the CAA will post when it becomes available. That said, facts matter, not all EPR laws are the same, and not all prospective plaintiffs will raise the same arguments. Of note, the issue of whether a ban on passing along EPR-related fees to customers at the “point-of-sale” or as a separate line item on an invoice or receipt (such as the bans in place in Colorado and California) is constitutional has yet to be decided by a court (as the issue was not before the Court in the NAW case).

Godfrey & Kahn will be closely monitoring the ramifications this case may have on manufacturers, brand owners and licensees, importers, distributors, and retailers across the country. If you have any questions about how this case or any of the other pending cases where parties are seeking to overturn a state’s EPR law on constitutional grounds may impact your company’s operations, please do not hesitate to contact Dan Blinka or Mark Thomson.

Pending State Extended Producer Responsibility Laws

California

• California League of Food Producers v. Bonta
• Natural Resources Defense Council, Californians Against Waste Foundation & Oceana v. CalRecycle
• State of Nebraska, et al. v. Heller

Colorado

• Independent Lubricant Manufacturers Association v. Colorado Department of Public Health and Environment
• NAW v. Ryan

Oregon

• Lollicup USA, Inc. v. Feldon
• NAW v. Feldon