The National Association of Wholesaler-Distributors (NAW) filed a notice of appeal last week, on Sept. 25, asking the U.S. Court of Appeals for the Ninth Circuit to overturn the decision that upheld Oregon’s packaging extended producer responsibility (EPR) law last month. The court had previously issued a preliminary injunction preventing the EPR law from going into effect against the plaintiff NAW’s members.
The filing wasn’t unexpected. Judge Michael Simon upheld the law despite NAW’s claims when he ruled on Aug. 27 that Oregon’s Plastic Pollution and Recycling Modernization Act violates neither the dormant Commerce Clause nor the Fourteenth Amendment’s guarantee of due process, and both sides said at the time that appeals were likely regardless of outcome.
The arguments in the appeal are the same ones NAW made at trial.
“An appeal is a second bite at the apple,” says Eric Greenberg, Packaging World’s Legal Side columnist. “If you think the ruling by the first, trial-level court was incorrect, you can appeal to a panel of three appellate judges to try to get them to reverse the first court’s decision. You don’t get to introduce new facts. You just get to give the three-judge appellate panel a crack at the question of whether the facts established in the first court either did or didn’t meet the applicable legal standards.”
NAW leans on that distinction in its announcement, noting that Simon himself wrote that “few material facts are truly disputed by the parties” and that the issues “are, for the most part, questions of law,” and that the Ninth Circuit reviews questions of law without deference. According to Greenberg, that is something appellants always say— a reminder to the panel not to give the judge below the benefit of the doubt on legal questions.
“The facts we established at trial haven’t changed, and they still show Oregon’s law is unconstitutional,” says Eric Hoplin, NAW president and CEO. “The district court reached the wrong legal conclusions, and we’re asking the Ninth Circuit to correct them.”
The NAW appeal names the same two issues that drove the first suit. The first is the U.S. Constitution’s Commerce Clause, arguing that Oregon’s law unduly interfered with commerce among the states. NAW argues Oregon’s law imposes fees on distributors who control neither the packaging nor where the product ends up, forcing multi-state companies to re-engineer operations or route product so it doesn’t enter the state of Oregon. NAW also points to a 2023 Oregon Department of Environmental Quality statement predicting producers selling into multiple states could recover program costs from customers elsewhere, reducing price impacts on Oregonians. At trial, NAW offered that document as evidence of Oregon’s protectionist intent, but Simon rejected it, both as a mischaracterization and as weak evidence of what legislators intended two years before it was written. On appeal, it resurfaces as an argument about what will be a secondary effect of the law, rather than an intended purpose.
The second is argument is that the law violates the plaintiffs’ due process rights, they say, by delegating too much government power to a private organization when it gave fee-setting authority and program administration to Circular Action Alliance, a private organization with its own commercial interests./ What’s more, they argue that the CAA’s methodology has been kept confidential (government decisions such as this are supposed to open to scrutiny), and any fee disputes are required to be decided by binding arbitration under CAA’s contract.
“These laws leave distributors with three terrible options,” says Brian Wild, NAW’s chief government relations officer, who testified at trial. “They can absorb fees they can’t afford on their already slim 3 to 5% margins, they can pass costs on to customers, or they can just stop selling into EPR states.”
The announcement of the appeal doesn’t address the finding Simon’s due process ruling actually rests on, which is that no producer is compelled to join CAA, because a producer can form its own producer responsibility organization, or privately recycle its covered products and fall outside the statute entirely. But NAW’s witnesses testified that that alternative is not realistic: It would require payment of a $150,000 Department of Environmental Quality (DEQ) plan-review fee, millions in annual operating fees, and a stretch of noncompliance while a producer moves from one PRO to another. Simon acknowledged those difficulties, but held that the option exists regardless.
Greenberg says there is no rule of thumb for how much weight a finding like that carries on appeal. But he noted that NAW’s evidence, as described, sounds less like a burdensome option than a plainly unavailable one. “To me, it sounds like it is impossible, not just difficult,” he says.
The February preliminary injunction that shielded NAW’s members — the first time any court blocked enforcement of a state packaging EPR law — is no longer in effect, NAW confirmed to Packaging World. That order covered NAW members only, and relief of that kind ordinarily dissolves once final judgment is entered. Simon’s findings did not address it. NAW did not say whether it will ask for an injunction or a stay while the appeal proceeds.
The practical effect is that NAW’s members are now subject to the RMA on the same terms as every other covered producer, and owe fees while the appeal runs.
A Ninth Circuit decision is unlikely before late 2027, and further review after that could push final resolution toward the end of the decade. Oregon’s program continues to operate in the meantime, and producers’ registration, reporting and fee obligations continue.
NAW is also the sole business plaintiff in a 17-state coalition challenging California’s SB 54, and filed a separate suit against Colorado’s EPR law (more below).
Parallel case in Colorado
A day before the Oregon appeal, NAW filed a reply brief in its separate challenge to Colorado's EPR law, and there it takes head-on the question of whether joining appointed PRO Circular Action Alliance (CAA) is practical or impractical, possible or impossible.
NAW sued Colorado in July over that state's Producer Responsibility Program for Statewide Recycling Act, asking the court to block enforcement while the case proceeds. Colorado opposed that motion. NAW's reply, filed Sept. 28, argues the state has not answered its constitutional arguments and rests its defense on two claims NAW says do not hold up.
The first argument against the Colorado law is the one worth watching, because it so closely echoes the Oregon case. Colorado’s officials argue, as did Oregon’s, that joining CAA is voluntary. NAW argues it is not, because the Colorado law requires companies to join as a condition of selling in the state. Nothing the Colorado court decides would bind the Ninth Circuit court of appeals that’s hearing the NAW appeal. But it is the first sustained version of an argument NAW will have to make in Oregon too, where Judge Simon's due process ruling hinged on his finding that producers are not compelled to join CAA, however impractical.
NAW's second argument is that Colorado's Department of Public Health and Environment doesn’t provide the oversight the Constitution requires when a private organization wields government power.
In its announcement, NAW also says Colorado left several points unanswered when it responded to the suit. First, it says that the state does not dispute it could reach its recycling goals with less burden on interstate commerce. NAW also says Colorado bars businesses from listing EPR fees on their invoices, and that courts have already found similar bans to be restrictions on speech. In NAW's telling, the state hasn't explained why the logic of those rulings doesn't apply here. Finally, it says that Colorado has identified no compelling interest justifying compelled membership and payment.
The Colorado suit is based on three First Amendment free speech claims the Oregon case did not, because the plaintiffs say the state’s law compels their membership and funding of CAA's political speech, and it imposes the invoice-disclosure ban.
NAW is represented there by the New Civil Liberties Alliance. So far, tthe court has not ruled on the injunction motion that would, at least temporarily, halt EPR payments made by NAW members.
