What legal challenges does US packaging EPR face?¶

No American court has yet ruled on whether packaging extended producer responsibility is constitutional. That sentence is the most important one in this article, because a great deal of commentary written in 2026 reads as though the question were settled in one direction or the other. It is not. Eight cases are live across four states; one has been fully tried and awaits decision; one preliminary injunction has issued, and it is narrow; seventeen state attorneys general have sued California; and every single matter of consequence was unresolved as of 11 August 2026. This article sets out what has actually been filed, what has actually been decided, what legal theories are in play and how strong each is, and why the European experience of litigating packaging EPR looks nothing like the American one.

Disclosure

The author of this library, Calvin Lakhan, was recalled as a rebuttal witness for the plaintiff on the fifth day of the Oregon trial described below. This article is written from law-firm reporting and primary court documents, and confines itself to the procedural record and the doctrinal questions; it takes no position on the merits of the Oregon case, and readers should weigh it accordingly.

1. The bellwether: NAW v. Feldon¶

The National Association of Wholesaler-Distributors — the trade body for firms that move goods between manufacturers and retailers, and therefore for producers who select none of the packaging they are charged for — sued the Director of the Oregon Department of Environmental Quality on 30 July 2025, challenging the Plastic Pollution and Recycling Modernization Act. The case is National Association of Wholesaler-Distributors v. Feldon, No. 3:25-cv-01334 (D. Or.), before Judge Michael H. Simon.

The complaint pleaded six causes of action: dormant Commerce Clause; unconstitutional conditions; procedural due process under the Fourteenth Amendment; equal protection; and two sets of Oregon constitutional claims, one under the state due-process and privileges-and-immunities provisions and one under the state nondelegation provisions.

On 6 February 2026 the court did two things at once. It dismissed the claims against the individual Environmental Quality Commission members, all of the Oregon constitutional claims (barred in federal court by sovereign immunity under Pennhurst), the unconstitutional-conditions claim and the equal-protection claim — all without prejudice, with leave to replead. And it granted a preliminary injunction on what survived: the dormant Commerce Clause and Fourteenth Amendment due process claims.

Three features of that injunction are routinely misreported.

It was granted on "serious questions," not likelihood of success. The Ninth Circuit permits a sliding-scale approach under Alliance for the Wild Rockies v. Cottrell (2011): where the balance of hardships tips sharply for the plaintiff, "serious questions going to the merits" suffice. The court expressly did not find that NAW was likely to win. That is a materially weaker judicial signal than the coverage implied.

It was narrow. The order enjoined the DEQ Director from enforcing the Act against NAW and its members only. Every other producer in Oregon remained obliged to register, report and pay. A clarification order of 6 April 2026 (Docket Entry 134) — which denied Oregon's motion for reconsideration but granted clarification of scope — tightened this further, limiting protection to "the members of that organization that were members as of February 6, 2026." Membership froze on the injunction date; joining afterwards conferred nothing.

Oregon did not pause anything else. DEQ declined to refund fees, telling Oregon Business & Industry on 13 February 2026 that "there is no basis for refunding fees. Statutes require payment of fees and those statutes remain in effect." It issued warning letters to non-compliant producers on 5 March 2026 and had flagged roughly 250 producers for non-compliance by 21 April 2026. Circular Action Alliance, which is not a defendant, stated that "nothing changes in CAA's operations."

The trial, and what the judge asked afterwards¶

Judge Simon held a five-day bench trial from 13 to 17 July 2026, roughly thirty-four hours of testimony. NAW's case was largely factual-record building: the Oregon executive director of Circular Action Alliance called adversely on how the organisation was created, governed and related to DEQ; NAW's government-relations officer on producer experience; a distributor executive on programme-plan mechanics and fee methodology. Oregon's witnesses on the final day addressed DEQ's oversight capabilities and fee transparency, the programme's consistency with EPR practice elsewhere, and environmental benefits not captured by recycling rates.

From the bench, the judge said: "I truly have not made up my mind on what to do and how to analyze this problem and what conclusion to reach." He treated the dormant Commerce Clause issues as fully briefed and ordered simultaneous post-trial briefs on six questions, five of which concern due process:

What protected property interest is at stake?
If one exists, what procedures are constitutionally required?
What is the significance of arbitration provisions in comparable laws?
What is the appropriate remedy if the producer agreement violates due process but the statute itself remains lawful?
Does delegation of functions to a private producer responsibility organisation have independent constitutional significance?
Is the confidentiality challenge premature before Oregon's public-records process is exhausted?

He then ordered narrow supplemental briefing on one further dormant Commerce Clause question — whether the Act's exemption for certain state public bodies qualifying as small producers is unconstitutional — with the final brief due 10 August 2026.

No decision has issued. No appeal exists, because there is no final judgment to appeal from; Oregon did not take an interlocutory appeal of the February injunction, moving for reconsideration instead and losing. Anyone describing the case as decided, or as on appeal, is wrong.

The shape of the questions is worth noting without over-reading it. Questions 3, 4 and 6 concern the producer agreement, arbitration and exhaustion rather than the statute — which is at least consistent with a court considering narrow, contract-specific relief rather than facial invalidation. That is an inference from the questions asked, not a prediction, and the judge's own statement from the bench is the better guide.

2. The other seven cases¶

Case	Court	Filed	Target	Status, 11 Aug 2026
NAW v. Feldon	D. Or.	30 Jul 2025	Oregon RMA	Tried; awaiting decision. Narrow PI in force
Lollicup USA v. Feldon	D. Or.	~25 Jun 2026	Oregon RMA	Stayed; enforcement pause to 31 Aug 2026
ILMA v. CDPHE	Denver Dist. Ct.	12 Mar 2026	Colorado HB22-1355	Motion to dismiss pending; fees remain due
NAW v. Ryan	D. Colo.	30 Jul 2026	Colorado HB22-1355	PI motion pending
*Nebraska v. Heller*	E.D. Cal.	22 Jun 2026	California SB 54	Early stage; no PI sought
NRDC / CAW / Oceana v. CalRecycle	SF Super. Ct.	~2 Jun 2026	SB 54 regulations	Intervention pending
AAFA v. CalRecycle	Sacramento Super. Ct.	27 Mar 2026	SB 707 (textiles)	PI tentatively denied 6 Aug; under submission
Cal. League of Food Producers v. Bonta	S.D. Cal.	17 Mar 2026	SB 343 (labelling)	PI granted 14 Jul 2026

Four of these repay specific attention.

Lollicup is the class action for everyone the Oregon injunction left out — its proposed class is defined as producers above the statutory thresholds "that are not afforded the protection of the preliminary injunction entered in National Association of Wholesaler-Distributors v. Feldon." A stipulation of 16 July 2026 pauses pre-enforcement notices against class members until at least 31 August 2026, and all deadlines are struck pending the NAW decision. It is a placeholder for the ruling.

ILMA v. CDPHE is the only case in the country attacking a fee level rather than a fee process. The Independent Lubricant Manufacturers Association contends that the $0.56-per-gallon charge "does not bear any rational relationship to actual recycling costs," and — more consequentially for the field — that Circular Action Alliance's use of harmonised national pricing rather than Colorado-specific costs violates the statute's requirement that funding not exceed implementation costs. That claim aims directly at the mechanism that makes multi-state administration efficient. The same complaint pleads due process, Colorado nondelegation, and a First Amendment challenge to Colorado's bar on point-of-sale EPR fee disclosure.

Nebraska v. Heller is the largest constitutional attack yet and the only case naming a producer responsibility organisation as a defendant. Seventeen states, led by Nebraska's attorney general, plus NAW, sued CalRecycle's director, the department, and Circular Action Alliance over SB 54 in eleven counts: three dormant Commerce Clause theories (discrimination, Pike burden, unfair apportionment), due process, extraterritoriality, private delegation under the Fifth and Fourteenth Amendments, First Amendment compelled speech and association, parallel California constitutional claims — and, unusually, the Import-Export Clause, a theory rarely deployed against state environmental regulation.

California League of Food Producers v. Bonta is not an EPR case, but it is the only American decision granting relief against a packaging mandate. On 14 July 2026 the court enjoined enforcement of SB 343, the recyclability-labelling law, on a finding of likelihood of success — the stronger standard the Oregon court did not apply. Because SB 343's recyclability criteria feed SB 54's material categories, the injunction is load-bearing for California's EPR programme even though it does not touch it directly. The reporting available does not specify whether the ruling rested on the First Amendment or on vagueness, and the distinction matters for what it implies elsewhere.

Four states with packaging EPR statutes — Maine, Minnesota, Washington and Maryland — face no litigation at all.

3. The theories, and how strong each is¶

Private nondelegation is the theory most discussed and the weakest as pleaded federally. In FCC v. Consumers' Research (27 June 2025, 6–3, Kagan J.), the Supreme Court upheld the FCC's use of a private not-for-profit administrator, reaffirming the Sunshine Anthracite test: a private body is permissible where it functions "subordinately to" the agency, subject to its "authority and surveillance," and where "the Commission, not the Administrator, is in control." That decision strengthens the states' hand, because agency approval of programme plans and fee methodologies is precisely the retained final say the Court found sufficient. The plaintiffs' counter is Carter v. Carter Coal (1936) — delegation to self-interested private competitors as "legislative delegation in its most obnoxious form." The live question is factual, not doctrinal: whether agency plan-approval is real control or a rubber stamp.

Note also that federal nondelegation does not bind state legislatures at all. That is why the challenges plead private delegation as due process in federal court and as nondelegation only under state constitutions — and why California, Colorado and Minnesota, which have well-developed state nondelegation doctrines, are the plausible venues for that theory to succeed.

The dormant Commerce Clause faces a significant headwind in National Pork Producers Council v. Ross (2023), which narrowed extraterritoriality and expressed deep scepticism about judicial balancing under Pike. Oregon's motion to dismiss made the straightforward Pork Producers argument: no in-state competitor receives favourable treatment, no discriminatory intent is alleged, and higher compliance costs are not discrimination. The judge nonetheless found serious questions — and the issue he singled out for supplemental briefing, the exemption for state public bodies, is a discrimination theory rather than a balancing one, which is doctrinally the stronger ground because discrimination triggers near-per-se invalidity.

Procedural due process is now the decisive question in Oregon, and it is genuinely open. The plaintiffs' theory is that money paid under a fee set by a private body using an undisclosed methodology, subject to binding arbitration and no judicial review, is a deprivation of property without process. The state's answer is that process exists at the agency level: statutory oversight, public comment, retained enforcement. Both propositions are about the same institutional facts this library documents elsewhere — unpublished fee methodologies, unpublished board procedures, absent appeal rights (the transparency article) — which is why the outcome will matter well beyond Oregon.

First Amendment claims come in three forms: challenges to fee-display bans, which are contestable because the statutes restrict charging a separate line-item fee rather than speaking about costs, and a court may find no speech regulated at all; compelled association and subsidy claims borrowing from Janus, with the strongest version being that mandatory dues fund political advocacy, against the counter-authority of Glickman v. Wileman Bros. for compelled subsidies ancillary to a comprehensive regulatory scheme; and compelled speech via labelling, where the only injunction so far has issued.

Two theories are conspicuously absent. No takings claim has been filed in any US packaging EPR case, and no preemption claim. Both are worth noticing, because their absence suggests the plaintiffs' bar regards the constitutional vulnerability as procedural — who decides, and by what process — rather than as an objection to the obligation itself.

4. Europe litigates the same institutions differently¶

The contrast is instructive. European challenges to packaging EPR are almost entirely competition-law actions about producer organisation market power, not constitutional attacks on the obligation. The European Commission fined Altstoff Recycling Austria €6 million in September 2016 for abusing dominance by refusing competitors access to its household collection infrastructure. Germany's Federal Cartel Office prohibited Remondis' acquisition of Duales System Deutschland in July 2019 on foreclosure grounds. Spain's competition authority published a market study recommending an end to Ecoembes' de facto monopoly and opened an abuse investigation into its plastics auctions in 2022.

The reason for the difference is structural. In Europe, producer organisations operate inside an EU-law framework that presumes their legitimacy and polices them under Articles 101 and 102 of the Treaty; the question is never whether a private body may set binding charges, only whether it is abusing its position while doing so. In the United States there is no such framework, so the same institutional facts arrive in court as constitutional questions. Canada, so far, has produced no reported challenge at all — though this is a negative finding at moderate confidence, since Canadian tribunal decisions are poorly indexed and no dedicated case-law search was run for this article.

5. Where the argument stands¶

Four conclusions are defensible and one is not.

Defensible. The American constitutional question is genuinely unresolved, and the only decided injunction against a packaging mandate concerns labelling, not EPR. The vulnerability being litigated is procedural — the delegation of fee-setting to an unaccountable private body — rather than substantive, which means the most likely remedies are reforms to producer agreements, fee transparency and appeal rights rather than invalidation of the statutes. Consumers' Research moved the doctrine toward the states, not away from them. And the litigation has already changed behaviour: seventeen attorneys general suing one state, and an eighth-state legislator being asked to adopt a model under active adjudication, is a real drag on the legislative pipeline (the US article).

Not defensible. Any claim about how any of this will come out. The trial judge said he had not made up his mind; the supplemental briefing closed the day before this article's cut-off; and no court has yet held either that packaging EPR is constitutional or that it is not.

There is one further gap worth stating plainly. No law review article on the constitutionality of packaging EPR appears to exist. The entire analytic corpus is law-firm client alerts and trade press — competent, but written by parties with clients. For a policy instrument now operating in seven states and under simultaneous challenge in four, that is a striking absence of independent scholarship.

References¶

Oregon: National Association of Wholesaler-Distributors v. Feldon, No. 3:25-cv-01334 (D. Or.) — complaint (30 July 2025); Oregon's motion to dismiss (22 December 2025); NAW's motion for preliminary injunction (Entry 33); Order on reconsideration and clarification (Entry 134, 6 April 2026), quoted directly; CourtListener docket 70967634. Trial coverage: Bergeson & Campbell day-one and day-five summaries; Oregon Capital Chronicle (13 July 2026); Foley & Lardner post-trial analysis (the judge's quoted statement and the six post-trial questions); Bergeson & Campbell on the supplemental dormant Commerce Clause briefing.
Injunction analysis: Hogan Lovells and DLA Piper client alerts (February 2026) — the Cottrell "serious questions" standard and the scope of the dismissals. Enforcement posture: National Law Review (DEQ refund statement, 13 February 2026); Resource Recycling (250 producers flagged, 21 April 2026); Circular Action Alliance, Understanding the Feb 6 ruling in Oregon (10 February 2026).
Lollicup USA v. Feldon: class definition and 16 July 2026 stipulation terms as reported by Arnold & Porter (July 2026).
Colorado: Independent Lubricant Manufacturers Association v. CDPHE, No. 2026CV30902 (Denver Dist. Ct.), as reported by Foley & Lardner and Pillsbury; NAW v. Ryan (D. Colo., filed 30 July 2026), claims from NAW's own release of that date.
California: Nebraska v. Heller (E.D. Cal., filed 22 June 2026) — plaintiff list, defendants and eleven counts per Foley & Lardner, Beveridge & Diamond and Steptoe; AAFA v. CalRecycle, No. 26WM000091 (Sacramento Super. Ct.) — verified petition of 27 March 2026 (primary), tentative ruling of 6 August 2026 per Jones Day; NRDC, Californians Against Waste and Oceana v. CalRecycle, per NRDC's press release and Steptoe; California League of Food Producers v. Bonta, No. 3:26-cv-01675 (S.D. Cal.), preliminary injunction of 14 July 2026 per Farella Braun + Martel and Steptoe.
Doctrine: FCC v. Consumers' Research, 606 U.S. ___ (27 June 2025) — slip opinion, including the Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940) subordination test; Carter v. Carter Coal Co., 298 U.S. 238 (1936); National Pork Producers Council v. Ross, 598 U.S. 356 (2023); Pike v. Bruce Church, Inc., 397 U.S. 137 (1970); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011); Janus v. AFSCME, 585 U.S. 878 (2018); Glickman v. Wileman Bros., 521 U.S. 457 (1997); United States v. United Foods, 533 U.S. 405 (2001). State nondelegation framing per Beveridge & Diamond.
Europe: European Commission, ARA decision, IP/16/3116 (20 September 2016) — the €6 million fine; Case T-419/03, Altstoff Recycling Austria AG v. Commission [2011] ECR II-975; Bundeskartellamt, Remondis/DSD prohibition (11 July 2019); CNMC market study E/CNMC/004/21 and the October 2022 Ecoembes investigation (outcome not verified — no fine should be asserted).

Verification note: docket numbers for the Lollicup, NRDC and Nebraska matters are reported rather than confirmed against a court docket; whether NAW repleaded its dismissed claims, the disposition of the American Forest & Paper Association's March 2026 intervention motion, whether ILMA moved for a preliminary injunction, and the constitutional ground carrying the SB 343 injunction are all unresolved in the available sources and are not asserted here. All case statuses are stated as of 11 August 2026. See Sources and method.