Packaging and EPR Policy Enter Legal Crossroads
Flexible packaging policy recently entered a new venue—the courtroom.
After years of charging ahead with new legislation and implementing regulations, state governments have suddenly found themselves on the defense legally.
Since last year, packaging producers and members of the packaging supply chain have filed lawsuits against state laws for extended producer responsibility (EPR) programs for packaging and against a recyclability claims law. Here is a closer look at those lawsuits:
Oregon EPR: Dormant Commerce Clause and Due Process Claims
In July 2025, the National Association of Wholesaler-Distributors (NAW) filed a lawsuit in federal court challenging Oregon’s first-in-the-nation packaging and paper EPR law. The judge granted a preliminary injunction preventing the enforcement of the law against the plaintiffs. While he dismissed claims related to unconstitutional conditions and equal protection under the Oregon Constitution, he allowed the case to proceed related to challenges over the federal Dormant Commerce Clause and due process. More recently, other Oregon-based and national trade associations were denied the opportunity to intervene as plaintiffs. The case will likely proceed to trial, scheduled to begin on July 13.
Colorado EPR: State Constitutional and Implementation Issues
On March 12, the Independent Lubricant Manufacturers Association (ILMA) announced it had filed suit over the implementation of Colorado’s EPR program, this time in state court. ILMA argues the program’s structure, including the material fees, violates constitutional protections and raises a novel claim that the approval of an Independent Producer Plan (IPP) for a group of producers violates the law. Specifically, the lawsuit claims Colorado improperly delegated regulatory authority to private stewardship organizations, forces producers to sign “take‑it‑or‑leave‑it” contracts, lacks transparency, and imposes fees that do not reflect actual recycling costs.
California SB 343: Free Speech and Due Process Concerns
On March 17, the Flexible Packaging Association (FPA) and a wide array of organizations representing food producers, packaging manufacturers, restaurants, and agricultural entities filed a federal lawsuit against California Attorney General Rob Bonta challenging the state’s law governing recycling label claims (SB 343). They argue the law imposes unconstitutional, content-based restrictions on speech in violation of the First Amendment. They also argue that the vagueness of the law violates the Due Process Clause protection. The case is pending further action in the U.S. District Court for the Southern District of California. Producers are particularly interested in this case, given the Oct. 4 deadline for compliance with the underlying law.
Conclusion
These three lawsuits have the potential to upend the rollout of EPR packaging across the country and to resolve the ongoing dispute over what it means to be “recyclable.” And while they raise important questions about the respective laws across the three states, it remains to be seen whether similar lawsuits will be filed elsewhere. Additionally, these lawsuits might serve as a warning to other states considering adopting similar EPR or labeling policies. In any case, the legal landscape for packaging policy is more unsettled than it was one year ago and is likely to remain so in the immediate future.
Edwin Borbon is a government affairs associate with Serlin Haley. Andy Hackman is principal lobbyist at the lobbying firm. Gregory Melkonian is a regulatory and government affairs analyst.
