Oregon’s EPR law temporarily blocked after industry pushback

The National Association of Wholesaler Distributors (NAW) has secured a preliminary injunction blocking enforcement of Oregon’s EPR law after arguing that it imposes burdensome fees and taxes on distributors. 

NAW is a trade association that represents companies that distribute products across various sectors, including food and industrial supplies. 

According to NAW, the US District Court for the District of Oregon agreed that the state’s “opaque” Plastic Pollution and Recycling Modernization Act may violate Due Process and Dormant Commerce Clauses in the US Constitution. 

These clauses prevent the government from unfairly depriving individuals of “life, liberty, or property,” and limit laws that discriminate against interstate commerce. As a result, the law cannot be enforced while the legal case determines whether the law is constitutional.

Packaging Insights speaks to Eric Hoplin, president and CEO at NAW, about why the industry group pushed for the injunction and its impact on packaging producers and distributors. 

“The injunction relieves NAW member companies of the fear of enforcement from the Oregon Department of Environmental Quality — an enforcement that comes with the potential of US$25,000 a day in penalties, which could cause severe harm,” says Hoplin. 

“This is a new law, the first in the US. It is complex and imposes a massive regulatory and financial burden on distributors, many of whom are located across state lines and were unaware of the law until just a few months ago.”

Creating uncertainty 

Oregon’s EPR fees are opaque, creating confusion for NAW members like food producers, says Hoplin.Hoplin explains that the fee and tax structure of the EPR law is enforced by the Circular Action Alliance. These fees, he argues, are creating confusion among NAW members. 

“EPR fees are developed with an opaque, confidential methodology. As a result, our companies have no real way of knowing what taxes will be imposed on them until they get a bill. Worse still, they have no means to dispute them but through private binding arbitration.” 

He adds that many of the fees mandated by Oregon’s EPR law for a product are often greater than the product’s margin. 

Notably, Hoplin asserts that the successful injunction in Oregon could “absolutely” set a precedent for other state-level packaging EPR laws, with “several others waiting in the wings.” 

An industry under pressure 

Many countries and states are implementing EPR legislation to curb plastic pollution and increase recycling rates. Recently, EPR legislation came into effect in Denmark, Indonesia, Kenya, the UK, and California, among others. 

Hoplin says that NAW’s challenge is based on the unconstitutionality of the law and “not a statement about recycling.” On top of this, he argues that the law focuses on the wrong part of the supply chain.

“The wholesaler-distributors NAW represents do not have the ability a manufacturer does to control much of the product packaging they use,” says Hoplin.

“It is also important to note that while ‘plastic’ is in the title of the law, it impacts all forms of packaging, including paper, cardboard, and even the label on your envelope.” 

Getting EPR legislation right

EPR legislation is gaining support to curb packaging waste pollution, but stakeholders criticize its unclear rules and costs.While EPR legislation is gaining traction as a viable solution to curb packaging-related pollution, industry stakeholders have argued it lacks clear rules and could drive up costs. 

Last year, the Australian Packaging Covenant Organisation announced it would not proceed with its proposed EPR fee model in the 2027 fiscal year, following stakeholder demand for greater regulatory certainty and free rider management. 

Similarly, Zero Waste Europe called for system optimization, harmonized rules, and transparency in the EU’s packaging EPR. A report by the Alliance for Mission-based Recycling urged EPR legislation in the US not to include film and flexible packaging in curbside recycling programs due to complex material composition and limited end markets.

Meanwhile, California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act is consistently drawing criticism from businesses who oppose rising financial burdens and environmental advocates who argue the packaging bill does not go far enough.