The intricate web of Extended Producer Responsibility (EPR) laws concerning packaging is rapidly evolving, presenting a complex compliance challenge for dietary supplement companies across the United States. While states like California and Oregon generally extend their EPR mandates to packaging used for dietary supplements, often with limited exemptions, Colorado has adopted a distinct approach. Its EPR legislation explicitly exempts packaging materials for products regulated by the U.S. Food and Drug Administration (FDA) as dietary supplements, creating a notable divergence in regulatory impact. This patchwork of state-level regulations is further complicated by ongoing constitutional challenges to EPR programs in all three states, which are testing the boundaries of state authority and could significantly reshape compliance obligations for supplement manufacturers operating nationwide.
The California EPR Case: A Nationwide Policy Debate
At the forefront of this regulatory contention is the lawsuit filed in California, State of Nebraska et al. v. Heller et al., initiated by 17 states, with the National Association of Wholesaler Distributors (NAW) joining as a significant plaintiff. This coalition has launched a broad constitutional challenge against California’s landmark Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54), alongside related "Plastics Act" provisions. The core of their argument hinges on multiple constitutional claims, including alleged violations of the Commerce Clause, the Import-Export Clause, the First Amendment, and the Due Process Clause. Furthermore, the plaintiffs are scrutinizing California’s decision to delegate significant regulatory and fee-setting authority to the Circular Action Alliance (CAA), an organization identified as the Producer Responsibility Organization (PRO) for paper and packaging in the United States.
The plaintiffs contend that California is, in effect, attempting to export its policy preferences and regulatory framework onto other states, thereby impermissibly burdening interstate commerce. Their amended complaint, filed on August 20, 2026, along with a motion for a preliminary injunction, seeks to halt the enforcement of SB 54 while the litigation progresses. The court has scheduled a hearing for January 15, 2027, to address the preliminary injunction motion. As of the current reporting, no injunction has been granted, and SB 54 remains in effect, compelling producers to navigate its requirements.
A key tenet of the lawsuit is the assertion that SB 54 imposes substantial burdens on interstate commerce. The argument is that out-of-state producers are effectively compelled to adhere to California’s stringent packaging regulations to gain access to the California market. This creates a competitive disadvantage for businesses not based in California and potentially forces them to redesign packaging strategies solely to meet one state’s specific mandates, regardless of their home state’s regulations. The plaintiffs also raise serious concerns about the delegation of fee-setting and other crucial regulatory powers to the CAA, a private entity. They argue that this delegation lacks adequate public oversight and clear legislative standards, potentially leading to arbitrary or inequitable fee structures and regulatory enforcement. The establishment of the CAA itself, as a single PRO designated to manage EPR for a vast array of paper and packaging, has drawn scrutiny regarding its monopolistic potential and accountability.
Oregon’s EPR Framework Under Constitutional Scrutiny
In Oregon, a similar constitutional challenge has been mounted against the state’s EPR regime. The National Association of Wholesaler Distributors (NAW) filed a lawsuit, NAW v. Feldon, asserting that Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) violated several constitutional principles. Initially, NAW’s claims encompassed the dormant Commerce Clause, nondelegation doctrines, unconstitutional conditions, and federal and state due process violations.
However, the legal landscape shifted in February 2026 when the District of Oregon dismissed several of NAW’s claims. While the court did issue a preliminary injunction, its scope was limited to enjoining the enforcement of Oregon’s EPR law specifically against NAW and its members. Crucially, the court allowed NAW’s federal dormant Commerce Clause and Due Process Clause claims to proceed to trial, indicating that these aspects of the challenge were deemed viable for further legal examination.
The legal battle took a significant turn on August 27, 2026, when the court delivered a ruling largely in favor of the state. The court dismissed NAW’s remaining constitutional challenges, finding that the RMA does not violate either the dormant Commerce Clause or the Due Process Clause. This decision represents a substantial victory for Oregon’s EPR program and potentially sets a precedent for similar legislation in other states.
Adding another layer to the Oregon legal narrative, a separate putative class action, Lollicup USA Inc. v. Feldon, was filed on June 25, 2026. This lawsuit echoes the constitutional arguments raised by NAW, challenging the RMA on behalf of producers not covered by the preliminary injunction granted to NAW. The full impact of the August 27 ruling on this class action remains to be seen, though NAW has indicated it is evaluating its legal options following the court’s decision. The ongoing legal actions underscore the contentious nature of EPR implementation and the persistent efforts by industry groups to challenge its constitutionality.
Colorado’s Unique Approach and Dual Legal Challenges
Colorado has carved out a distinct path regarding packaging EPR laws, notably excluding packaging for FDA-regulated dietary supplements from its requirements. This exemption offers a degree of regulatory relief for many companies in the sector. Nevertheless, Colorado’s broader Producer Responsibility Program for Statewide Recycling Act (HB 22-1355) has not escaped legal scrutiny, with two separate challenges now targeting its implementation.
The first challenge, brought by the Independent Lubricant Manufacturers Association (ILMA) v. Colorado Department of Public Health and Environment, raises significant concerns about the program’s operational framework. ILMA alleges that the Colorado Department of Public Health and Environment (CDPHE), in conjunction with producer responsibility organizations, including the CAA and the Lubricant Packaging Management Association (LPMA), has implemented the EPR program in a manner that contravenes the statute and infringes upon fundamental due process rights. Specific allegations include forcing producers into "take-it-or-leave-it" contracts with private PROs, imposing fees that are not directly tied to actual recycling costs, and delegating core regulatory authority to private entities without sufficient governmental oversight. While this case is still pending, ILMA filed a motion for a preliminary injunction in August 2026, seeking targeted relief from certain aspects of the EPR program. No ruling on this motion has been publicly reported.
The second federal lawsuit was filed on July 30, 2026, by NAW, NAW v. Ryan, in the U.S. District Court for the District of Colorado. This suit challenges the constitutionality of HB 22-1355 on multiple grounds. NAW’s claims include due process and First Amendment challenges, focusing on the delegation of fee-setting authority to the CAA, the alleged compelled association with and funding of the CAA, restrictions on producers’ ability to disclose EPR-related costs to consumers, and the CAA’s utilization of mandatory producer fees for policy advocacy efforts. NAW has also sought a preliminary injunction in this case, but as of the current date, no injunction has been granted.
While the Colorado litigation is ongoing, the explicit exemption for dietary supplement packaging means that these specific legal challenges are generally not directly applicable to the primary packaging of such products. However, companies are advised to conduct a thorough assessment of any packaging that might fall outside this statutory exclusion to ensure full compliance with all relevant regulations. The differing approaches taken by California, Oregon, and Colorado highlight the fragmented regulatory landscape that businesses must navigate.
Key Takeaways and Future Implications for Dietary Supplement Companies
From the perspective of Amin Wasserman Gurnani LLP, the current legal climate demands a proactive and informed approach from dietary supplement companies. Despite the ongoing legal battles and the potential for future court rulings, companies should operate under the assumption that applicable EPR programs will remain in effect. This strategy is crucial unless and until a court issues a formal order staying or enjoining enforcement, or otherwise modifies the existing requirements.
This cautious approach is particularly warranted in California and Oregon. In California, the litigation is still in its early stages, with a critical hearing on a preliminary injunction approaching. In Oregon, while a recent court ruling upheld the RMA, further legal actions and appeals are still possibilities. In Colorado, the specific exemption for dietary supplement packaging provides a degree of certainty, but the broader legal challenges to the state’s EPR framework serve as a reminder of the evolving regulatory environment.
The implications of these EPR laws extend beyond mere compliance costs. They can influence packaging design, material sourcing, supply chain management, and ultimately, the cost of goods sold. Companies that proactively engage with these regulations, stay abreast of legal developments, and explore innovative packaging solutions that minimize environmental impact are likely to be better positioned to adapt and thrive. The ongoing litigation, regardless of its ultimate outcome, is a clear signal that EPR is a significant and enduring policy trend. Understanding the nuances of each state’s approach, the constitutional arguments being raised, and the potential ramifications for their specific product lines will be critical for dietary supplement companies navigating this complex and dynamic regulatory terrain. The decisions made in these high-profile cases will undoubtedly shape the future of packaging EPR laws across the nation, impacting how businesses operate and consumers interact with products for years to come.
