NAW EPR Case - Split Decision Affirms Basis for EPR Programs But Reigns in Delegation of Authority to PRO

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 affirmed the authority of states to adopt extended producer responsibility (“EPR”) programs by dismissing federal constitutional challenges under the dormant Commerce Clause and Due Process Clause. But the court held that a preliminary injunction was warranted, halting enforcement of the program against NAW members, because Oregon's delegation of authority to Oregon's PRO, Circular Action Alliance ("CAA"), likely violated the Non-Delegation and Equal Protection Clauses of the U.S. Constitution.

NAW challenged, among other things, CAA's confidential fee methodology, claiming CAA operated without sufficient state oversight or public transparency.  In addition, NAW claimed that their members lacked 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.

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 trial is currently scheduled for July 13, 2026, where the court will decide if these temporary pauses should become permanent.

Other states with EPR programs can expect to face similar challenges but also have the opportunity to make changes that will protect their programs, such as tightening regulatory oversight over the PROs and requiring greater transparency in the programs. In California, for example, CalRecycle will likely use its current regulatory revision period to mandate that the PRO’s fee formulas must be transparent and public. rMoreover, there are already 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.