The National Association of Wholesaler-Distributors has expectedly appealed a federal district court ruling that upheld Oregon’s Extended Producer Responsibility packaging law.

NAW announced Sept. 24 that it filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit in NAW v. Feldon, challenging the Aug. 27 ruling that Oregon’s Plastic Pollution and Recycling Modernization Act does not violate the dormant Commerce Clause or Due Process Clause of the U.S. Constitution.

The expected appeal follows a five-day bench trial held July 13-17 in Portland, OR, where NAW challenged the constitutionality of Oregon’s EPR framework. The trial came after the same court granted NAW members preliminary injunctive relief in February, temporarily blocking enforcement of the law against NAW and its members while the case proceeded.

NAW said its appeal focuses on two principal issues: the law’s impact on interstate supply chains and Oregon’s delegation of fee-setting authority to a private organization.

“The facts we established at trial haven’t changed, and they still show Oregon’s law is unconstitutional,” NAW President and CEO Eric Hoplin said in the association’s announcement. “The district court reached the wrong legal conclusions, and we’re asking the Ninth Circuit to correct them.”

Oregon’s RMA requires covered producers of packaging, printing and writing paper, and food serviceware to join a producer responsibility organization, report covered product volumes and pay fees based on those volumes. The law is designed to shift end-of-life recycling costs for covered products to entities defined as producers.

NAW has argued that Oregon’s framework can sweep in wholesaler-distributors that do not control the packaging they handle or where products are ultimately disposed. The association said the law forces multistate companies to absorb costs, pass them along or reconsider how they sell into EPR states.

“These laws leave distributors with three terrible options,” NAW Chief Government Relations Officer Brian Wild said. “They can absorb fees they can’t afford on their already slim 3-5% margins, they can pass costs on to customers, or they can just stop selling into EPR states. Every one of those options raises costs for Americans.”

NAW’s due process argument centers on Circular Action Alliance, the producer responsibility organization administering Oregon’s program. NAW said CAA sets and collects producer fees using a methodology it has designated confidential, while fee disputes are routed through binding arbitration under CAA’s contract.

The district court rejected NAW’s claims in its Aug. 27 findings and conclusions, holding that Oregon’s RMA does not violate either the dormant Commerce Clause or the Due Process Clause.

NAW’s appeal extends its broader legal push against state EPR laws. The association is also the sole business plaintiff in a multistate lawsuit challenging California’s EPR law and has filed a separate challenge to Colorado’s EPR law. Both cases are ongoing.

MDM Analysis

Distributors should watch whether the Ninth Circuit focuses narrowly on Oregon’s law or addresses broader questions around producer definitions, private fee-setting and interstate supply chain burdens. Any appellate guidance could shape ongoing challenges in Colorado and California, as well as how distributors plan for compliance as more states pursue EPR frameworks.