Are Extended Producer Responsibility Laws Constitutional: A Look At The Legal Challenge In Oregon

Key Takeaways

• Many states have now enacted extended producer responsibility (EPR) laws, creating new and costly requirements for manufacturers, wholesalers, and retailers based on the packaging of the products they produce, distribute, and sell. 
• The National Association of Wholesaler-Distributors (NAW) recently filed suit in federal court, alleging that Oregon's EPR law violates multiple constitutional doctrines, including the dormant commerce clause, due process, and equal protection under the U.S. Constitution and the nondelegation doctrine under Oregon's constitution. 
• The complaint argues that Oregon's program is effectively a compulsory private regulatory regime, forcing companies to contract with a single Producer Responsibility Organization (PRO), a private entity (Circular Action Alliance) authorized to impose regulatory requirements that exceed constitutional limitations.
• The outcome could affect the operations of EPR laws nationwide, as despite significant differences, all state EPR laws grant substantial responsibility to the PRO. 
• Businesses subject to EPR obligations should monitor this litigation closely, as it may influence compliance structures in states implementing similar laws (e.g., California, Colorado, Maine, Maryland, Minnesota, and Washington).

Background

In NAW v. Feldon, filed on October 27, 2025 in the District of Oregon, a national trade association representing the wholesale distribution industry challenged Oregon's Plastic Pollution and Recycling Modernization Act (ORS §§ 459A.860–975). The Act, enacted in 2021 and implemented in 2025, requires producers of packaging, paper, and food serviceware to join a state-approved producer responsibility organization (PRO) or create their own costly compliance program. Oregon has approved only one PRO—Circular Action Alliance (CAA)—which sets and collects fees from producers under a confidential fee methodology. Each covered producer must register with CAA, sign a mandatory contract, and pay fees based on product type, weight, and recyclability. According to NAW's complaint, for many mid-sized wholesalers, the fees exceed product margins and are determined through a methodology unavailable for public review.

Arguments in the NAW Complaint

Commerce Clause and Extraterritoriality:  The law discriminates against and unduly burdens interstate commerce, imposing inconsistent, state-specific EPR requirements that force companies to alter national logistics and packaging design decisions.

Unconstitutional Conditions and Due Process:  The program conditions market access on surrendering constitutional rights—forcing producers to contract with a private monopoly and accept binding arbitration without public transparency or judicial review.

Equal Protection:  The EPR framework creates a two-tier system that exempts small producers, favors large corporations through incentives, and disproportionately burdens mid-sized firms lacking influence or cost absorption capacity.

Nondelegation and Private Governance:  The law delegates fee-setting and enforcement powers to CAA, a private nonprofit, without legislative standards or procedural safeguards, violating Oregon's separation-of-powers provisions.

Analysis and Recommendations

• The Oregon litigation is an important development for those tracking state EPR programs, and the court's decision could shape EPR programs nationwide.
• Federal litigation is one tool to address concerns with highly burdensome EPR programs. Businesses should also consider state court litigation, particularly to address nondelegation claims, which vary by state constitution. Some states, like California, Colorado, and Minnesota, have well-developed nondelegation doctrines.
• Other forms of engagement, including comments on rulemaking and work with state legislatures, can provide an opportunity to raise specific concerns but are unlikely to affect the overall structure of these laws.

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