Colorado’s EPR suit leans on Oregon’s ruling: what it means

Counsel count the claims differently (Arnold & Porter lists five, the National Law Review four broad challenges), which looks like a grouping difference.

On 5 August NAW moved for a preliminary injunction to bar enforcement of the Colorado Act and defer the EPR payment obligations of NAW and its members. Colorado opposed the motion, and NAW replied on 28 September. In that reply NAW says the state’s defence rests on two claims: that joining CAA is voluntary and that CDPHE sufficiently controls CAA.

The scope limit packaging teams often miss

The statute reaches fewer distributors than the Oregon and California laws do. Colorado’s law excludes most business-to-business sales, though it could still cover distributors in certain circumstances. The law defines “producers” in a way that can include wholesale distributors. NAW argues it sweeps in distributors that handle packaged products but generally do not design the packaging or control how it is discarded.

The plaintiff is a single trade association and the relief sought is for its members. A brand owner that is not a NAW member would not be covered by an injunction as NAW has framed it. In Oregon, the injunction was limited to NAW’s members and did not touch CAA’s operations, since CAA was not named in the suit.

Why Oregon changes the footing

On 27 August 2026 Judge Michael H. Simon issued a 71-page decision in NAW v. Feldon, ruling for Oregon DEQ and dismissing NAW’s dormant Commerce Clause and Due Process Clause claims. Jones Day calls it the first merits ruling on a trial record to address the constitutionality of a state packaging EPR law. It lifted the February injunction that had shielded NAW members from DEQ enforcement.

Two findings matter for Colorado. On delegation, the court found that DEQ keeps ultimate approval and enforcement authority; trial evidence showed it reviewed CAA’s fee methodology and required substantive changes. On cost, the court accepted that burdens were real (one distributor testified that an invoice of roughly $884,000 from CAA consumed most of its $1.2 million gross profit on Oregon sales) but held that higher costs for particular firms are not a substantial burden on the interstate market.

Colorado’s response follows that script. On 13 October 2026 CDPHE moved to dismiss part of NAW’s complaint. The motion targets the private nondelegation and unconstitutional conditions claims, arguing that substantially similar theories already failed in Oregon. It does not address the dormant Commerce Clause or First Amendment claims, so two of the case’s biggest challenges stay open. The motion does not change current reporting or dues requirements.

Oregon is not the end of that litigation either. NAW filed a notice of appeal to the Ninth Circuit on 24 September. Resource Recycling reported on 20 October that NAW is asking for a pause on enforcement while the appeal proceeds. Oregon DEQ’s position is that the law remains in effect and implementation continues.

Where the US packaging cases stand

What this probably means in practice

The following is interpretation, not holdings.

Obligations stand. The text of the Colorado docket as reported shows no injunction and no stay. Registration, supply reporting and dues remain live, and the Oregon result suggests a Colorado injunction is less likely than it looked in February. A federal judge in Colorado is not bound by a district court in Oregon, but Faegre Drinker expects other courts could treat the Oregon ruling as persuasive authority on the Commerce Clause and Due Process Clause.

The speech claims are the real unknown. Only due process and commerce claims went to trial in Oregon, so the First Amendment arguments about compelled membership and the invoice itemisation ban have no trial-record precedent in the packaging EPR setting. If Colorado’s motion to dismiss succeeds on the delegation claims, those are the claims that remain alongside the commerce theory.

Distributors carry most of the direct exposure. NAW’s public message is about narrow margins; its chief government relations officer describes three options for distributors: absorb fees on slim 3 to 5 percent margins, pass costs to customers, or something worse. For a brand owner or converter the practical consequence is on the commercial side: expect customers that distribute your packaged goods to ask who is the obligated producer and how fees are passed through. In Colorado, the invoice-itemisation ban is part of what NAW is contesting, so check how your contracts handle fee pass-through before you rely on any standard approach.

Labelling is a separate track. SB 343 is paused, not repealed. One commentary notes that misleading recyclability claims can still draw lawsuits under California consumer protection laws. Dropping chasing arrows or keeping them is a risk decision, and the injunction only restrains the Attorney General’s enforcement of the statute.

Open questions

• Timing of the Colorado injunction ruling. The preliminary injunction motion is briefed, but I found no hearing date or ruling. Even if Colorado wins on the due process claims, NAW could seek to amend its complaint.
• Ninth Circuit. NAW’s appeal focuses on the commerce theory (funding new infrastructure at out-of-state distributors’ expense) and on delegation of fee-setting to CAA. I found no briefing schedule. A reversal would reopen both Oregon and, by influence, Colorado.
• State-court route. The ILMA case raises statutory questions about how CDPHE designated and approved programme participants. A state-court ruling could change the programme on grounds a federal court never reaches.
• Fee governance. The Oregon court relied on trial evidence of DEQ scrutiny of CAA’s methodology. Whether CDPHE’s oversight looks the same on the Colorado record is untested, and NAW’s reply disputes that CDPHE controls CAA.

What to watch next

The court’s response to Colorado’s partial motion to dismiss and the ruling on the injunction are the near-term events. EPR Atlas, a tracker, lists Colorado Producer Responsibility Advisory Board meetings on 28 October and 18 November. Those are the venues where fee, eco-modulation and reimbursement questions surface, so they tell you more about the programme’s cost direction than the litigation does.

Also watch the outcome of NAW’s stay request in Oregon, and any ruling in the California SB 54 case, where a tracker reports that plaintiffs in the SB 343 case moved on 8 October to add claims against SB 54 (this is a secondary source; confirm against the docket).

What to do now

• Keep complying in Colorado and Oregon: registration, supply data and dues are not suspended for non-members of NAW, and none of the sources report a stay of Colorado’s programme.
• Check whether you or a customer could be the “producer” under the statute. Distributors and private-label sellers are the grey area; read the definitions in HB 22-1355 itself.
• Review supply contracts for fee pass-through and invoice wording in Colorado, given the contested itemisation rule.
• Decide whether to keep recyclability claims on California-bound packs. The enforcement pause lowers statutory risk but not consumer-protection risk, and the injunction is preliminary.
• Keep fee modelling flexible: litigation could alter who pays and how fees are set, while the underlying cost of packaging materials stays tied to material and format choices.
• Assign one person to track the dockets for NAW v. Ryan (1:26-cv-03460), the Ninth Circuit appeal and the CAA advisory board agendas.

Sources

• Source: NAW Position on Packaging and Paper EPR Laws
• Source: NAW Challenges Colorado’s Extended Producer Responsibility Law
• Source: CalRecycle, Accurate Recycling Labels
• Source: Packaging Dive, NAW files lawsuit challenging Colorado EPR law
• Source: Packaging Dive, Oregon EPR law doesn’t violate Constitution, judge rules
• Source: Packaging Dive, California blocked from enforcing upcoming ‘truth in labeling’ law
• Source: Arnold & Porter, Trade Association Challenging Oregon’s and California’s Packaging EPR Programs Sets Its Sights on Colorado
• Source: National Law Review, Colorado Takes a Page from Oregon’s Playbook
• Source: Packaging Law, Federal Court Upholds Oregon Packaging EPR Law, Ninth Circuit Appeal Filed
• Source: Jones Day, Oregon’s Paper and Packaging EPR Law Survives the Following Trial
• Source: Faegre Drinker, Federal Court Upholds Oregon’s EPR Law
• Source: Keller and Heckman, Oregon’s Packaging EPR Law Is Constitutional
• Source: National Law Review, Federal Judge Rules Oregon Packaging EPR Law Constitutional
• Source: Resource Recycling, NAW asks to pause Oregon EPR fees
• Source: Resource Recycling, NAW sues Colorado over EPR packaging law
• Source: Modern Distribution Management, NAW Sues to Block Colorado EPR Law
• Source: Modern Distribution Management, NAW’s Colorado EPR Challenge Enters Next Court Phase
• Source: Board Converting News, NAW Challenges EPR Rulings in Oregon, Colorado
• Source: FEDA, Federal Lawsuit Filed Over Colorado EPR Law
• Source: Pillsbury, Colorado Packaging EPR Program Faces Legal Challenge from Lubricant Trade Association
• Source: Personal Care Products Council, Colorado EPR summary
• Source: Certivo, Colorado Packaging EPR Compliance 2026
• Source: Lexology, Federal Court Pauses California’s SB 343
• Source: Norton Rose Fulbright, Federal court enjoins California’s SB 343
• Source: EcoEnclose, What SB 343 Means for Your Sustainable Packaging
• Source: EPR Atlas, U.S. Packaging EPR Regulations by State

Header photo of Colorado State Capitol: RuralResurrection, CC BY 4.0, via Wikimedia Commons.