Key Takeaways
- Colorado is leaning on Oregon’s recent Extended Producer Responsibility (EPR) victory. The State has moved to dismiss National Association of Wholesaler-Distributors’ (NAW) private nondelegation and unconstitutional conditions claims, arguing that substantially similar theories already failed in Oregon.
- Colorado’s motion does not address NAW’s dormant Commerce Clause or First Amendment claims, meaning two of the case’s most significant challenges will remain unresolved.
- The motion does not affect current reporting or dues requirements, and the pending preliminary injunction has not halted implementation of Colorado’s EPR program.
- Even if Colorado succeeds on its motion dismissing the due process claims, NAW could seek to amend its complaint to address deficiencies identified by the State.
Colorado has fired its first shot in the fight over its Extended Producer Responsibility law, and it came straight from Oregon’s playbook. On October 13, 2026, the Colorado Department of Public Health and Environment (CDPHE) moved to dismiss part of the National Association of Wholesaler-Distributors’ complaint. NAW’s complaint asserted four broad constitutional challenges to Colorado’s Producer Responsibility Program for Statewide Recycling Act. The State did not attack the whole case. It went after the two claims that already lost in Oregon: the private nondelegation claim and the unconstitutional conditions claim, both of which were brought under the Fourteenth Amendment Due Process Clause. Colorado’s message to the court is simple: NAW tried these arguments before in Oregon, and they lost.
The State left NAW’s dormant Commerce Clause claim and both First Amendment claims alone for now.
Same Plaintiff, Same Theories, Same Result?
Colorado calls Oregon’s EPR law “nearly identical” to its own. It leans heavily on the District of Oregon’s August 27, 2026 across-the-board win for Oregon after a trial where NAW challenged Oregon’s EPR law.
The core argument is a threshold one, and it is the same one that tripped NAW in Oregon. A challenge to a state delegation of power is different from a challenge to a delegation by Congress. The plaintiff must first show that a protected property or liberty interest is at stake. The Oregon court called that question “a close call” but ruled against NAW. Colorado says NAW “makes the same mistakes here.”
Colorado also turns NAW’s own exhibit against it. NAW says Circular Action Alliance (CAA) operates without real oversight. But the Program Plan attached to NAW’s complaint describes 28 public advisory board sessions, plus a public comment period and amendments that CDPHE required before it approved the plan. NAW contends its property interest is being forced to pay the Producer Responsibility Organization (PRO) money. It did so in a reply brief, though, and Colorado argues a reply brief cannot fix a complaint.
“[NAW] Had a Choice”
On the unconstitutional conditions claim, Colorado’s theme is choice. In Oregon, one alternative was enough to defeat NAW’s claim: the court reasoned that producers could form their own PRO. Colorado says producers have three paths: join CAA, submit an individual program plan, or seek an exemption by rule. NAW calls the individual plan “cost-prohibitive” and “illusory.” Colorado answers with an example: The Lubricants Packaging Management Association submitted its own plan, and CDPHE approved it after amendment.
Colorado then goes after the no day in court complaint, one of the industry’s sharpest grievances with CAA. CAA’s base participant agreement allows court proceedings if mediation fails. The Colorado addendum requires arbitration but keeps the right to seek injunctive relief in court.1 Eco-modulated dues can be appealed to the advisory board, and judicial review is available after that. Colorado says this covers 15 of 26 covered material categories.
Looking Ahead
Even a complete win for Colorado on its Motion to Dismiss would not end the case. Colorado’s own argument about NAW’s late-raised property interest points NAW toward amending its complaint to revive the due process claims. Colorado’s Motion leaves bigger fight, the dormant Commerce Clause, is untouched. That includes NAW’s claim that the Act’s exemptions favor in-state businesses and push costs onto out-of-state brand owners. It is also the theory NAW leaned on hardest in Oregon, at trial and in the final ruling.
The message for producers has not changed. Nothing in this filing affects reporting or dues obligations today. The preliminary injunction motion is still pending. The invoices will keep coming.
Footnote
1. Of course, given the great discretion the CAA has in defining and determining the meaning of the PPA, any injunctive relief to enforce it would hypothetically be applied one-sidedly against the producers.
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