Trade Association Challenges Colorado Packaging EPR Law

Link to Key Takeaways Key Takeaways

• The National Association of Wholesaler-Distributors filed another lawsuit against a state extended producer responsibility program, challenging Colorado’s Producer Responsibility Program for Statewide Recycling Act (House Bill 22-1355).
• In addition to challenging the law’s constitutionality, the lawsuit targets practical compliance issues such as itemizing EPR costs on invoices, fee dispute resolution, and mandatory participation in the state’s producer responsibility organization, the Circular Action Alliance.
• A ruling is expected by the end of August 2026 in a similar lawsuit challenging Oregon’s extended producer responsibility law, while a lawsuit challenging California’s law remains ongoing.
• Despite the lawsuits, Colorado, Oregon, California, and other states are moving forward with implementing extended producer responsibility programs.

The fight over packaging extended producer responsibility (EPR) laws has moved to Colorado, where the National Association of Wholesaler-Distributors (NAW) filed NAW v. Ryan on July 30, 2026, challenging Colorado’s Producer Responsibility Program for Statewide Recycling Act (the Act), House Bill 22-1355, in the U.S. District Court for the District of Colorado. The Colorado filing is the third state packaging EPR challenge involving NAW, following its Oregon lawsuit and its role as the sole business plaintiff (along with 17 state attorneys general) in the multistate challenge to California’s EPR law, SB 54. NAW is the sole plaintiff in the Colorado case, and the defendant is Jill Hunsaker Ryan, executive director of the Colorado Department of Public Health and Environment (CDPHE). 

NAW’s August 5 motion for preliminary injunction asks the court to bar CDPHE from enforcing the Act (and its regulations) against NAW and its members and to defer their EPR payment obligations while the case proceeds. In practical terms, NAW argues that Colorado gives the Circular Action Alliance (CAA) too much control over producer obligations and fees. The motion asserts five constitutional theories:

• Due process;
• Unconstitutional conditions, meaning Colorado allegedly conditions market access on accepting CAA’s authority and giving up court review;
• Dormant Commerce Clause, which concerns burdens on interstate commerce; and
• Two First Amendment claims: first, whether producers may itemize EPR costs on invoices; and, second, whether Colorado can require producers to join and fund CAA advocacy.

NAW further argues that CAA has “wide discretion” over program terms and fees and has barred producers from challenging its actions in court. NAW also contends the fee structure has immediate business consequences, as “CAA dues relating to a given product can exceed the narrow margin a distributor earns on a sale.”

These arguments echo the claims in a related case; in NAW v. Feldon, NAW filed a 2025 challenge to Oregon’s Plastic Pollution and Recycling Modernization Act on grounds tied to CAA’s role, fee-setting, due process, and interstate commerce. In February 2026, the Oregon court granted a preliminary injunction based on NAW’s Due Process and Dormant Commerce Clause claims, while declining to grant relief on NAW’s other claims at this stage. The case then proceeded through a July 13-17, 2026 bench trial, and the briefing and oral argument are now done. The Oregon ruling is expected by the end of August 2026.

For regulated companies, the Colorado motion may be more immediately relevant because it targets practical compliance issues: whether producers can itemize EPR costs on customer invoices, what recourse they have to dispute fees, and whether mandatory producer responsibility organization (PRO) participation can be challenged when the PRO also engages in policy advocacy.

Importantly, “producers” have been required to participate in the Colorado EPR packaging program for “covered materials” since July 1, 2025, and have been required to pay mandatory fees since January 2026. For now, until the court says otherwise, compliance obligations remain live. CDPHE must respond to NAW’s preliminary injunction motion no later than September 16, 2026.

Troutman Pepper Locke’s Environmental + Natural Resources team closely monitors developments in packaging EPR litigation and compliance across all active state programs. Whether you are assessing producer registration obligations, evaluating the business impact of mandatory PRO participation, or tracking the constitutional challenges that may reshape these programs, our attorneys are available to help you navigate the evolving regulatory landscape. For questions about how these developments may affect your organization, please contact the authors of this blog, or any member of our Environmental + Natural Resources group.