Packaging EPR court fights: Oregon, Colorado and California

Three US state packaging laws are being tested in court at the same time, and each case asks a different question. Who counts as a “producer”, who may collect the fees, and what “recyclable” means on a label are all in dispute. This roundup covers the October developments in Oregon, Colorado and California, plus a Maine PFAS suit that sits on a separate legal track but touches the same fibre-packaging supply chain.

The common thread is timing. No court has so far suspended a state packaging EPR program for producers generally, so registration, reporting and payment continue while the arguments run. Anyone budgeting for 2027 is paying for laws whose edges are still being drawn.

Oregon: the first full ruling favours the state

On 27 August 2026, the US District Court for the District of Oregon upheld the Plastic Pollution and Recycling Modernization Act, rejecting dormant Commerce Clause and Due Process challenges brought by the National Association of Wholesaler-Distributors (NAW). Beveridge & Diamond describes the 71-page decision as the first reported full-record ruling on constitutional challenges to a state packaging EPR law, issued after a five-day bench trial. The court had earlier granted NAW members a preliminary injunction, then rejected the remaining claims once the full trial record was in.

The evidence NAW put forward shows why distributors are the exposed group. In one example the court discussed, a distributor with about $5.2 million in Oregon-related sales and $1.2 million in gross profit received an EPR invoice of roughly $884,000. The court still found that higher costs and supply chain effects did not show a substantial burden on interstate commerce.

NAW has appealed. Its announcement came on 24 September 2026, and the Ninth Circuit docketed the appeal on 30 September. NAW’s opening brief is due 17 December 2026 and Oregon’s response on 18 January 2027. Packaging World reports that a Ninth Circuit decision is unlikely before late 2027.

In practice, the February injunction no longer protects anyone. Packaging World notes that NAW’s members owe fees on transport packaging such as pallets and stretch wrap while the appeal proceeds. A separate class action against Oregon’s program by Lollicup USA has been paused; the plaintiff and Oregon DEQ’s director jointly moved to stay it pending NAW’s appeal. Arnold & Porter’s Jennifer Kwapisz told Packaging Dive that companies remain subject to their compliance obligations under Oregon’s program in the meantime.

Colorado: one product, two producer responsibility organisations

Colorado’s program has been collecting dues since January 2026. Producers have had to participate since 1 July 2025, and mandatory fees began in January 2026. NAW’s federal case there (NAW v. Ryan) was filed on 30 July. A litigation tracker shows injunction briefing completed with NAW’s 28 September reply and no ruling on the docket as of 14 October.

The newest filing adds a sector-specific problem. Packaging Dive reports that the Auto Care Association, whose members include chains such as AutoZone and O’Reilly, filed to intervene in the NAW case. The motion dates from 15 October. Its core complaint is that members could face fees from Circular Action Alliance (CAA) and also under the Interchange 360 program run by the Lubricants Packaging Management Association, which covers packaging for oil-based lubricants, antifreeze and similar fluids.

The group says the two systems do not talk to each other. Its motion asserts that each organisation has its own registration process, agreement, portal, data format, material categories, deadlines and fee schedule, with no apparent coordination. National Law Review, summarising member declarations, reports that one member paid more than $575,000 to the two organisations in Colorado alone, and a recent fee change tripled fees in many instances. These are the association’s allegations, not findings.

One strand could matter more than the constitutional arguments. Auto Care also asks the court to declare that the state health department’s approval of the lubricants plan was contrary to the Act, because the regulations do not allow more than one PRO until 2029. A ruling on that statutory point could end the duplication without touching the rest of the program. Intervention is not assured: a court in Oregon denied similar motions in April 2026, just weeks before trial, though Colorado’s case is much earlier-stage.

Who is affected: brand owners selling fluids or other products that fall under an individual producer plan, and mid-sized retailers and distributors above the small-business threshold. Auto Care estimates more than 200 of its members are mid-sized companies that exceed Colorado’s small-business exemption but lack the compliance infrastructure of larger producers.

California: the recyclability definition meets the fee plan

California has two laws with a shared vocabulary. SB 343 governs recyclability claims; SB 54 is the EPR and source reduction law. A coalition led by the California League of Food Producers won a preliminary injunction against SB 343 in July: the court found four provisions defining “recyclable” likely void for vagueness and its speech restrictions likely unconstitutional. The original compliance date came and went. SB 343’s original compliance date of 4 October 2026 passed without state enforcement because of the injunction.

In October the plaintiffs widened the case. A group of 21 organisations sought leave to amend their federal complaint to challenge specific provisions of SB 54. Recycling Today reports that the filing targets provisions barring businesses from separately disclosing SB 54 fees to customers, and the law’s reliance on the same “recyclable” definition used in SB 343. The plaintiffs include the American Forest & Paper Association, the Flexible Packaging Association and the Consumer Brands Association. A hearing is set for 9 November in San Diego before Judge William Q. Hayes.

Other suits are pending. A lawsuit led by Nebraska’s attorney general, with more than a dozen other AGs and NAW, targets SB 54. From the opposite direction, the Natural Resources Defense Council, Oceana and Californians Against Waste Foundation sued CalRecycle in San Francisco County Superior Court over parts of the final regulations, including the food and agricultural commodity exclusion mechanism.

Meanwhile the program itself keeps moving. CAA submitted its revised California program plan to CalRecycle on 13 October 2026. A tracker site reports that the final draft plan proposes a 2027 budget of $1,105 million, including the $500 million a year environmental mitigation surcharge the PRO owes, and that it proposes a single 2027 fee rate per covered material category, matching CAA’s 1 October preliminary schedule and not binding until CalRecycle approves the plan. The same tracker notes CalRecycle must act within 75 calendar days of receiving the plan.

For a sense of the fee structure, CAA’s flat 2026 early-fee rates (the pre-program year, not the 2027 schedule) were as follows, as reported by the EPR Atlas tracker:

CAA California 2026 early fee rates by material class

Registration is the near-term pressure point. Panelists at an EPR in Produce forum on 9 October said, according to the organiser’s release, that about 3,400 producers have registered, against roughly 5,700 expected when the regulation was finalised. They added that from 1 January 2027, unregistered producers may not sell, offer for sale or distribute covered materials in California. The same panel said no pending litigation has paused SB 54.

Maine: PFAS liability reaches the mill

The fourth item concerns packaging chemistry. The Greater Augusta Utility District sued five companies in federal court. The complaint, filed on 7 October 2026 in the District of Maine, names Sappi North America, Huhtamaki, Kimberly-Clark, American Tissue Corporation and American Tissue Mills of Maine. Packaging Dive reports that Huhtamaki is named over its Waterville molded fiber foodservice site and Sappi over its Skowhegan mill, which makes paperboard used for cups and folding cartons.

The district alleges PFAS discharged along the Kennebec River reached its wells. It says a November 2024 sample recorded 23.3 parts per trillion across six monitored compounds, above Maine’s 20 ppt limit, and it seeks past and future treatment costs. The allegations have not been established in court. Sappi says it is in compliance with all environmental regulations and its discharge permits; Huhtamaki says it is reviewing the complaint.

This is tort litigation, not a packaging PFAS restriction, so it does not change what can go into a pack. It does show that historic PFAS use in fibre barriers can create liability at the mill and wastewater level, a point converters and paperboard buyers will want in supplier conversations. Packaging Dive adds that companies consistently note the difficulty of finding effective safer alternatives for fibre packaging.

Where each case stands

Jurisdiction	Case or action	Latest status	Effect on producers now
Oregon	NAW v. Feldon (D. Or.), appeal No. 26-6404 (9th Cir.)	Law upheld 27 Aug 2026; NAW opening brief due 17 Dec 2026	Fees and reporting apply, including for NAW members on transport packaging
Colorado	NAW v. Ryan (D. Colo.); ILMA v. CDPHE (state court)	Injunction motions pending; Auto Care moved to intervene 15 Oct 2026	Registration, reporting and dues remain due; dual-PRO issue unresolved
California	California League of Food Producers v. Bonta (S.D. Cal.)	SB 343 enjoined; SB 54 claims added; hearing 9 Nov 2026	SB 343 not enforced; SB 54 registration and 1 Jan 2027 start unaffected so far
Maine	Greater Augusta Utility District complaint (D. Me.)	Filed 7 Oct 2026; defendants say they are reviewing or contest it	No change to pack rules; supplier due diligence on PFAS history

Status entries come from the sources cited above; court dockets and the official state pages are the place to confirm current positions, and a lawyer should advise on company-specific exposure.

What to do now

Keep paying and reporting. Treat Oregon and Colorado dues, and California registration, as live obligations. Budget fee disputes separately from the fees.
Check your California registration status. The 1 January 2027 sales restriction applies to unregistered producers, and small-producer exemptions need a formal application.
Distributors and wholesalers: map which transport packaging (pallets, stretch wrap) makes you a “producer” in each state, and ask suppliers who reports what to avoid double counting.
Anyone in a product category with an individual producer plan: confirm in writing which PRO covers each SKU’s packaging, and keep records in case the Colorado statutory question succeeds.
Hold recyclability claims for California to a version you can defend under both the SB 343 and SB 54 definitions, since the “recyclable” wording is now a litigation target.
Converters and paperboard buyers: ask mills and moulders for PFAS histories, wastewater controls and current discharge permits.
Diarise the dates: 9 November (San Diego hearing), CalRecycle’s decision on the CAA plan (CAA targets on or before 1 January 2027), and Oregon’s Ninth Circuit briefing in December and January.

Sources

Header photo of Ninth Circuit courthouse: Tony Webster, CC BY 2.0, via Wikimedia Commons.