NAW told a federal court on September 28, 2026, that Colorado has failed to answer its central constitutional arguments against the state's Extended Producer Responsibility (EPR) law for packaging, pressing for a preliminary injunction that would stop fee collections while NAW v. Ryan (Case No. 1:26-cv-03460) proceeds.

The filing is the trade association's reply brief in support of the injunction motion it filed alongside its July 2026 lawsuit. Colorado opposed the motion; NAW's reply is the final word before the court decides whether to halt the law's operation.

The reply argues Colorado's defense rests on two claims, and that both collapse on inspection.

First, Colorado says joining the Circular Action Alliance (CAA) — the producer responsibility organization that administers the program — is voluntary. NAW counters that it is not: the EPR law requires companies to join CAA as a condition of selling in the state. A membership requirement tied to market access is compulsion, not choice, the association argues.

Second, Colorado says its Department of Public Health and Environment controls CAA. NAW responds that the department does not provide the constitutionally required oversight for a private organization to leverage government power. The point goes to the heart of NAW's delegation theory: a private body assessing mandatory fees on businesses, with state supervision too thin to satisfy constitutional standards.

Beyond rebutting those two claims, the reply flags arguments Colorado left unanswered.

Colorado does not dispute, NAW says, that it could reach its recycling goals with less burden on interstate commerce — a concession that matters under dormant Commerce Clause scrutiny, where less discriminatory alternatives weigh against a state law.

The law also bars businesses from listing EPR fees on their invoices. Courts have already ruled that bans of this kind regulate speech, according to NAW, and Colorado has not distinguished those decisions. For distributors, this is more than a technical point: it strips them of the ability to show customers why prices moved, while forcing the cost into the price itself.

Finally, NAW argues the law compels businesses to join and pay into CAA without Colorado identifying a compelling state interest that justifies the requirement.

The association's underlying economics argument is straightforward. Distributors do not design the packaging of the products they sell, and they have no control over any state's recycling and waste management programs. Yet Colorado's EPR law treats some distributors as if they control both. The fees will not change how products are packaged or disposed of, NAW argues — they will only raise the cost of doing business, compressing margin on goods where the distributor holds no design leverage over the compliance cost being imposed.

NAW also frames the harm as immediate rather than hypothetical: its members are suffering constitutional injury now, and they are paying fees to CAA that they cannot easily contest or recover. That asymmetry — mandatory payments now, uncertain recourse later — is why the association is asking the court to stop the law now rather than wait for a final judgment.

The New Civil Liberties Alliance (NCLA) is representing NAW in the case. The association's broader position on packaging and paper EPR laws — that obligations belong with producers who control packaging decisions, not intermediaries that merely move goods — frames the litigation as part of a wider fight over how states shift waste-management costs through the distribution channel.

The court's ruling on the preliminary injunction will signal whether Colorado's fee regime can continue operating while the constitutional questions are litigated — and, by extension, whether distributors selling into the state keep paying into CAA in the meantime.