Will EPR Laws Become DOA? And What Does Prop 65 Have to Do With It?

Currently, seven states have extended producer responsibility (EPR) laws, and lawsuits have now been filed against those in Oregon, Colorado, and California. This litigation could decide whether EPR laws survive in their current form in both these states and nationwide. Recent federal injunctions against enforcement of certain California Proposition 65 chemicals may bode well for these plaintiffs. Read on.

What Is EPR and Why Should You Care?

EPR laws differ in particulars and cost from state to state, but the basic premise is the same: the financial burden of recycling and disposing of packaging should fall on whoever “produced” it. Two problems. First, the result of these laws is that one state is, in effect, regulating companies that sell products in all 50 states. Second, they delegate enforcement, fee assessment, and the ability to penalize to a nongovernmental body called a “producer responsibility organization” (PRO) — and force regulated companies to pay for it, with no effective appeal. What could possibly be wrong with that?

Seven states currently have some form of EPR law — California, Colorado, Oregon, Maine, Washington, Maryland, and Minnesota. Oregon, Colorado, and California are furthest along on enforcement, and each now faces litigation. A brief overview:

Oregon

In 2025, the National Association of Wholesaler-Distributors filed a lawsuit in federal court against the state and the PRO Circular Action Alliance. The complaint seeks an injunction and a finding that the law is unconstitutional on several grounds — all applicable to EPR laws elsewhere. The complaint alleges violations of the nondelegation doctrine (forcing companies to fund and be regulated by an unelected PRO with no legislative oversight), the dormant commerce clause (discriminating against out-of-state producers), and due process (requiring payment with no meaningful way to challenge how fees are set or materials are classified). The Oregon court granted a preliminary injunction and held a bench trial; post-trial arguments are set for next month.

California

As with most things, California’s EPR law (SB 54) is the most ambitious, requiring all single-use packaging and plastic food service ware sold in the state to be recyclable or compostable by 2032, with graduated benchmarks along the way. In June, the National Association of Wholesaler-Distributors joined 17 state attorneys general, led by Nebraska, in a complaint in federal court against the state and the Circular Action Alliance, arguing — as in Oregon — that the law violates the dormant commerce clause, due process, and the First Amendment. The plaintiffs note the law’s “practical effect” is to regulate business in all 50 states.

The other main argument asks whether the government can force you to join and pay for a group run by unelected people who have the power to impose fees and penalties with no effective appeal. The answer should be no. “No state should limit interstate commerce, let alone delegate the power to set and collect taxes to a third party outside of the scope of public scrutiny,” said Eric Hoplin, the association’s president and CEO. Indeed. The law remains in effect for now — though SB 54 can’t catch a break, facing another lawsuit claiming it isn’t strong enough.

Colorado

Finally, on March 12, 2026, the Independent Lubricant Manufacturers Association filed suit in Colorado state court challenging its EPR law (HB 22-1355). The claims here echo the federal complaints in Oregon and California, plus an added argument that the fee-calculation methodology itself is unlawful. Colorado’s law also lets a producer seek approval for an individual program plan instead of joining a PRO; plaintiffs are challenging the state’s approval of such a plan for a consortium they argue isn’t really “individual.” Unlike in Oregon, the plaintiff didn’t seek an injunction here. Will the state proceed with enforcement anyway? 

What Does Prop 65 Have to Do With EPR?

Recent federal rulings on the constitutionality of everyone’s least favorite chemical warning law — California’s Prop 65 — show that federal courts, unlike state courts, aren’t afraid to strike down state laws that overreach. Over the last few years, four federal courts in California have permanently enjoined Prop 65 enforcement of four separate listed chemicals — National Association of Wheat Growers v. Bonta (glyphosate),  California Chamber of Commerce v. Bonta (acrylamide in food), Personal Care Products Council v. Bonta (titanium dioxide in cosmetics and personal care products), and Personal Care Products Council v. Bonta (diethanolamine) — in each case finding no settled evidence that the chemicals pose a risk to humans. Accordingly, these courts found that a Prop 65 warning telling the consumer it is “known” that the chemical can cause cancer or reproductive harm — when there is contradictory or no evidence to support that statement — represents unconstitutional compelled commercial speech and a violation of the First Amendment.

The fundamental question in both these cases and the EPR litigation is the same: How much is too much? Just as California can’t force a company to carry an untrue warning, it shouldn’t be able to force companies nationwide to join and pay for an unelected private organization that will, in effect, dictate how they do business.

So, could EPR laws become dead on arrival? The remaining EPR states — Maine, Washington, Maryland, and Minnesota — are obviously watching this litigation closely. If the laws survive court challenges, there will be many, many more states joining the bandwagon in the near future.