NAW Files Reply in Challenge to Colorado’s Packaging EPR Law

As part of its efforts to gain a preliminary injunction blocking Colorado’s extended producer responsibility (EPR) law for packaging, the National Association of Wholesaler-Distributors (NAW) submitted new documents on Sept. 28 contending that the state has not answered its main constitutional arguments.

The association filed the lawsuit, NAW v. Ryan, in July 2026 in federal court. In its latest submission to the court, NAW argues that Colorado's defense rests on two claims it says do not hold up. First, NAW says Colorado characterizes membership in the Circular Action Alliance (CAA), the private organization that administers the state’s EPR program, as voluntary. That is inaccurate, NAW states, because the law makes joining CAA a condition of selling covered products in the state. Second, Colorado maintains that its Department of Public Health and Environment controls CAA. NAW argues that the department does not provide the level of oversight the U.S. Constitution requires before a private organization may exercise government power.

NAW adds that Colorado still has not responded to several of its other arguments, including:

• That the state could meet its recycling goals with less burden on interstate commerce.
• That the law’s ban on listing EPR fees on invoices regulates speech. NAW says courts have ruled on similar bans and that Colorado has not distinguished those decisions from the facts of NAW v. Ryan.
• That the state has not identified a compelling interest to justify requiring businesses to join and pay into CAA.

A core issue with EPR laws in Colorado and other states is that distributors do not design the packaging of the products they sell and have no control over state recycling and waste management programs. Despite this, NAW believes Colorado’s law treats some distributors as though they control both. The association says EPR fees will not change how products are packaged or disposed of and will instead raise the cost of doing business.

“NAW members are suffering constitutional harm right now, and they’re being forced to pay fees to CAA they can’t easily contest or recover,” NAW said. “That’s why NAW is asking the court to halt this law now.”