An Oregon judge offered new clarity this past week on who is temporarily exempt from enforcement of the state’s extended producer responsibility for packaging law, and imposed limits on other groups that want to join the National Association of Wholesaler-Distributors’ ongoing legal challenge.
In February, NAW won a preliminary injunction, blocking the Oregon Department of Environmental Quality from enforcing the Recycling Modernization Act against NAW members. On Monday, U.S. District Judge Michael H. Simon clarified that the injunction only applies to companies that were NAW members as of Feb. 6 — not any companies that have joined since then. The case is scheduled to go to trial in July.
Additionally, on Wednesday the court denied the American Forest & Paper Association’s and other business groups’ motions to intervene in NAW’s case, in turn denying as moot their motions for preliminary injunction. With only months to go before trial, intervention would likely disrupt or delay the process, according to the judge.
Oregon is the first U.S. state to implement a packaging EPR law, with producer responsibility organization Circular Action Alliance collecting fees.
The most recent updates in the case from the Oregon judge follow defendant Leah Feldon, director of the Oregon Department of Environmental Quality, filing a motion for reconsideration, or at least clarification on the scope of the injunction. While Simon denied the motion for reconsideration, he granted the clarification for the injunction.
Oregon regulators worry about risks to implementation
Oregon DEQ is having a hard time projecting how the ongoing lawsuit and preliminary injunction will impact the EPR program’s financial viability, the judge recounted in an update.
Oregon DEQ’s motion for reconsideration came the same day as a March deadline for producers to submit their first installment of 2026 fees. DEQ relayed to the court that “fee receipts from the March 6 deadline are thankfully sufficient to carry the program through July, though whether that will continue to be the case beyond July (if the trial date had to be pushed back) is an open question.”
“NAW argues that only 5.7% of PRO membership fees are at stake, based on the incomplete membership list that NAW itself provided on March 6,” according to the court document.
DEQ suggested the program’s financial situation could be in jeopardy in the future: “if the existing preliminary injunction were to last beyond July, further withholding of fees based on the preliminary injunction could cause greater financial impacts to the program,” the judge’s update said.
Oregon DEQ raised another issue: NAW had not provided a complete list of the members that would benefit from the injunction, in part citing confidentiality reasons, which for DEQ was “resulting in administrative headaches for program administration and a lack of information on the injunction’s impact to the program.”
“DEQ could not reasonably have anticipated that NAW would be unable or unwilling to tell DEQ who all of NAW’s own members are,” according to the document.
Prior to the judge clarifying the scope of the injunction, DEQ had “reason to believe other producers have and will continue to join NAW post-injunction, seeking to avoid paying fees.”
Oregon judge clarifies scope of preliminary injunction
In part of its recent bid to the court, DEQ argued that NAW had a “shifting” position in regard to who its members are.
Covered producers “are approaching DEQ claiming to be exempt from the Act’s fees as members of NAW,” which is one factor “making it nearly impossible for DEQ to comply with the injunction” while enforcing the law for producers who are not members of NAW, according to a court document.
In the judge’s decision to not extend injunction benefits to new members, he pointed to the fact that “Other federal district courts limit associational, preliminary relief to the members of the organization at the time the injunction is entered.”
Judge blocks new additions to NAW’s lawsuit, citing timeliness issue
The court found AF&PA’s choice to join NAW’s lawsuit “untimely.”
Other groups that wanted to join NAW’s lawsuit included the Northwest Grocery Retail Association and the Oregon Business and Industry Association.
AF&PA joining would expand the scope of the case to a new industry, which would increase the burden on DEQ as it seeks to prepare for a successful trial in July.
The court also found there wasn’t a persuasive reason that AF&PA waited until March to file its motion. NAW secured its preliminary injunction in early February, followed by a letter from DEQ saying it would move forward with enforcement of non-NAW producers. “AF&PA then waited more than a month before filing its motion to intervene on March 16, 2026 — less than four months before trial,” the document stated.
The update also noted that nothing is stopping AF&PA from bringing its own constitutional suit challenging enforcement of the EPR law.
AF&PA did not comment as of publication time.
What’s next
The trial is scheduled to begin July 13. Karen Harned, NAW’s director of litigation and legal policy, recently told Packaging Dive that NAW’s primary focus is on preparing for the July trial in Oregon versus launching challenges in other states.
Packaging EPR is also under fire in Colorado, the second U.S. state to implement such a law. The Independent Lubricant Manufacturers Association, which said it has been in communication with NAW, filed a lawsuit in Colorado last month, taking issue with the PRO structure as well as a provision that limits disclosure of the costs of the recycling program to customers.
