Alert 07.28.25
Navigating New Waters: Getting Ahead of Extended Producer Responsibility Laws
Managing Compliance Amidst Rapidly Changing and Fragmented Packaging EPR Regulations
Alert
Alert
02.25.26
Extended Producer Responsibility (EPR) laws regulating packaging materials are now in effect in several states and expanding rapidly nationwide. As we’ve discussed previously, these laws are designed to shift the costs of managing packaging waste from municipalities to “producers,” a term typically defined broadly and depending on the situation, vaguely to include brand owners, manufacturers, importers, distributors, wholesalers and retailers that introduce covered packaging materials into a state’s marketplace. EPR programs require producers to register with a designated third party—typically referred to as the Producer Responsibility Organization (PRO)—that manages the program, report detailed packaging data, and pay fees to support recycling and waste management systems.
As these programs come into effect, companies across numerous sectors are confronting complex and often divergent compliance obligations. Trade associations and industry groups are increasingly being asked to help members understand whether and how these laws apply to their operations, navigate registration and reporting requirements, and assess potential advocacy or litigation strategies in a rapidly evolving regulatory landscape.
The Expanding EPR Landscape: From Concept to Implementation
EPR programs in Oregon, Colorado, California, Maine, Maryland, Minnesota and Washington are all in various stages of implementation, even as EPR legislation has been proposed in New Hampshire, Wisconsin, New York, Rhode Island, Massachusetts, Hawaii, Nebraska, North Carolina, Illinois, Tennessee and New Jersey.
Oregon and Colorado are furthest along with fully implemented programs. Producers in those states are expected to have already registered with the states’ PRO, the Circular Action Alliance (CAA), submitted detailed material reports, and remitted fees to CAA if applicable. Other states are moving through phased implementation schedules with reporting starting this year and fees starting in 2027. Maryland, Minnesota and Washington are projected to follow by 2030. However, the EPR implementation process is not always straightforward. In March 2025, California’s implementing agency, CalRecycle, was directed by Governor Newsom to restart the rulemaking process just as draft regulations were scheduled to be finalized. CalRecycle then announced in January 2026 that it was withdrawing proposed regulations it had submitted for review citing the need for further revisions. This process has created uncertainty for trade associations and provides a sense of the complex and controversial nature of implementing EPR legislation.
For companies that introduce packaging into multiple states, the cumulative effect is an expanding set of compliance deadlines, data-reporting obligations and potential fee exposure across jurisdictions.
Compliance Complexity and the Patchwork Problem
Differences in the key details of each state’s EPR program can lead to materially different compliance outcomes for businesses. Because state EPR laws define “producer” differently, responsibility can shift based on factors such as branding or transaction structure, the same product sold into a state by the same company may have a different responsible producer depending on the state into which it is sold. Similarly, the scope of covered materials and applicable exclusions may diverge significantly. For example, packaging used in business-to-business transactions is covered by Oregon’s program but not Colorado’s.
For companies operating in multiple states, determining responsibility for a specific item may require transaction-specific analysis. Because responsibility is frequently tied to branding, brand owners may be responsible for packaging that enters a state downstream of their initial sale through transactions they did not control. In many cases, companies may lack contractual provisions requiring downstream entities to provide the information necessary to satisfy reporting obligations. For national trade associations, this patchwork creates both compliance challenges and broader strategic questions about how best to support members subject to different state requirements.
Most state programs also require producers to register and enter into a binding agreement with a PRO. At present, CAA is the sole PRO in multiple states. Registering with CAA typically involves execution of a non-negotiable agreement governing reporting, fee payment and dispute resolution via mandatory arbitration. This contractual arrangement leaves fewer administrative pathways that companies can take if they disagree with fee determinations or program administration. Trade associations advising members should therefore consider not only regulatory requirements, but also the contractual framework through which programs are implemented.
Recent Litigation Adds Further Uncertainty
Against this backdrop, ongoing federal litigation in Oregon has introduced an additional layer of legal and practical complexity. In 2025, the National Association of Wholesaler-Distributors (NAW) filed suit in the U.S. District Court for the District of Oregon challenging aspects of the state’s packaging EPR program on federal constitutional grounds. The complaint raises, among other issues, questions regarding the statutory structure of the program, violation of due process, impact on interstate commerce, and the delegation of authority to CAA. Several other trade associations, including the Air-Conditioning, Heating, and Refrigeration Institute, the American Lighting Association, and the Association of Home Appliance Manufacturers, have participated in the litigation as amici.
On February 6, 2026, the court denied in part a motion by the Oregon Department of Environmental Quality (DEQ) to dismiss certain federal claims and granted NAW’s motion for a preliminary injunction, blocking DEQ from enforcing Oregon’s EPR law against NAW and its members pending further proceedings.[1]
The injunction prohibits state enforcement activity against NAW’s members (see next paragraph) until the case is adjudicated. As to whether the court order also enjoins the implementation of other aspects of the law, the court remained silent despite NAW’s argument that DEQ impermissibly delegated a private third party (CAA) the discretion to implement EPR laws without providing for meaningful procedural specificity or oversight. Moreover, the injunction does not clearly address the contractual obligations producers may have with CAA. Following the court’s ruling, CAA publicly stated that producers should continue to register, report and remit fees in accordance with program requirements notwithstanding the injunction. This position, coupled with the court’s order, creates uncertainty regarding whether compliance obligations arise solely from state enforcement authority, and thus are enjoined, or also from contractual commitments entered into with CAA.
Moreover, although the injunction formally applies to NAW’s members, questions remain regarding the practical scope of enforcement during the pendency of the litigation. Because any entities against which enforcement is initiated could assert the same constitutional arguments that NAW successfully pleaded, it is unclear whether DEQ would attempt to pursue enforcement actions against non-members, and no such enforcement action has been taken as of yet.
A hearing on the remaining constitutional issues is currently scheduled for July 2026. Given the cause of action’s grounds in the Constitution, the adjudication of the NAW lawsuit will likely have implications beyond Oregon, as it could influence how other states design their EPR programs and inform future challenges. For trade associations, monitoring the trajectory of this litigation, and evaluating its potential impact on members across jurisdictions, may be an important component of broader EPR strategy.
Strategic Considerations for Trade Associations and Their Members
The scope of the EPR programs being implemented and proposed will extend across a range of commercial and industrial sectors, and trade associations may wish to assess how they will adapt to new conditions and guide members through their EPR-related obligations. In jurisdictions where reporting and fee requirements are active, associations may increasingly be asked whether members should continue to register, submit data and remit payments pending further judicial developments. Associations may wish to consider the scope of pending litigation and potential consequences of noncompliance, as well as contractual provisions in participation agreements.
The NAW challenge also highlights broader strategic questions. Associations may evaluate whether participation in litigation, whether as a party or amicus, is warranted based on member alignment, potential precedential impact and available resources. Litigation strategy may intersect with legislative and regulatory engagement, particularly as additional states refine or adopt EPR frameworks. Coordinated advocacy may help promote harmonization and clarity across state programs, as well as improve transparency in fee-setting and dispute-resolution processes.
Finally, associations may play a central role in supporting member education and risk management. Clarifying requirements, tracking multistate deadlines, and providing updates on statutory, contractual and judicial developments may help members make informed decisions in this rapidly evolving regulatory environment.
Conclusion
Packaging-related EPR laws have moved from emerging policy initiatives to active regulatory programs imposing concrete compliance and financial obligations across multiple states. As jurisdictions continue to implement or consider similar frameworks, the resulting patchwork of statutory requirements, contractual participation structures and evolving litigation will present new challenges for trade associations and their members.
The ongoing proceedings in Oregon underscore that these programs remain subject to judicial challenges and potentially dramatic changes. Monitoring developments, supporting member risk assessment, and engaging strategically in regulatory or legislative processes may be central to navigating packaging EPR programs. Pillsbury has a leading trade associations practice, continues to track EPR developments, and is available to assist industry groups in evaluating compliance, advocacy and litigation considerations as this regulatory landscape evolves.
[1] The District Court refused to dismiss the claims that NAW brought under the Dormant Commerce Clause and the Due Process Clause of the Fourteenth Amendment. The District Court dismissed all claims that NAW brought under the Oregon Constitution, its Unconstitutional Conditions claim, as well as its Equal Protection claim. However, these claims were dismissed without prejudice, and NAW has the option to replead them on or before February 20.