NAW EPR Case Pauses Enforcement for NAW Members

On February 6, 2026, the U.S. District Court for the District of Oregon issued a critical ruling in National Association of Wholesaler-Distributors (NAW) v. Feldon, a case challenging Oregon’s landmark Plastic Pollution and Recycling Modernization Act (RMA).

The court held that a preliminary injunction was warranted based on the Due Process Clause and the Commerce Clause of the U.S. Constitution, pausing enforcement of the program against NAW members until a decision is made on the merits. The court also dismissed other claims arising under the Equal Protection Clause, Oregon constitutional claims, and Unconstitutional Conditions Claims, but with leave to amend.

NAW challenges, among other things, the scope of Oregon's delegation of authority to Oregon's PRO, Circular Action Alliance ("CAA"), claiming CAA operates without sufficient state oversight or transparency, including a fee methodology that is confidential and not available to the public. In addition, NAW claims that their members lack the corporate infrastructure of larger companies to influence CAA’s governance or absorb the costs of the fees assessed under the state's EPR program.

Some arguments are targeted specifically to NAW members and the Oregon program, such as claims that NAW members are disproportionately affected by fees because of the exemption for small producers and the “bonus" available to larger companies (who can afford to prepare a Life Cycle Analysis). The NAW also argues the law is unfair because it is not enforced against competitors.

The NAW’s arguments under the Dormant Commerce Clause, however, present broad challenges to the program, including allegations that the fees are excessive and present logistical difficulties in making operational changes specific to Oregon without disrupting broader interstate supply chains. 

While the preliminary injunction pauses enforcement of the Act against NAW members, the court order is not a final ruling on the merits. A full hearing on the merits is currently scheduled for trial on July 13, 2026. Meanwhile, Oregon will no doubt be evaluating what steps it could take to moot at least some of the constitutional challenges before the trial, either by legislative amendment or under its current rulemaking process - and, if it receives an unfavorable ruling on the merits, whether it will appeal the decision.

Other states with EPR programs can expect to face similar challenges but also have the opportunity to make changes that may protect their programs, such as (depending on facts under each state program) tightening regulatory oversight over the PROs, allowing for multiple PROs, and requiring greater transparency in the programs. In California, for example, CalRecycle may use its current regulatory revision period to mandate fee transparency and address other issues raised in the lawsuit. Moreover, there are differences between different state programs, with some states already exercising greater oversight and transparency than Oregon's program.

In conclusion, while the decision represents a pivotal moment for the EPR programs, it also provides states with an opportunity to reframe their programs to survive similar constitutional challenges, albeit through a narrow legal needle, as challenges rooted in interstate commerce represent systemic vulnerabilities that may be difficult to address, depending on the court's reasoning and final decision on the Dormant Commerce Clause claims - and whether either party appeals from the court's final decision. Meanwhile, producers will need to make risk management decisions about pending program deadlines.