The plastics sector is ready for legal battles over recycling allegations

The business is aware that a new legal battle over plastics is about to break out. The tactic, which depends on the industry continuing to promote a false narrative despite knowing for a long time that recycling plastics would not be a practical, long-term solution to the growing global pollution problem, is similar to the highly successful attacks on manufacturers of nicotine products and “forever chemicals.”

“Using litigation as a tactic has value for political purposes,” stated Matt Seaholm, CEO of the Plastics Industry Association (PLASTICS). Thus, I believe it is imperative that we prepare for the regrettable possibility of increased litigation in the future.

In an attempt to restore public trust in the industry, plastic manufacturers are substantially investing in contentious strategies to increase stagnating recycling rates, as they brace for a barrage of lawsuits from advocacy organizations and state attorneys general.

Attorney General of California Rob Bonta recently informed Reuters that his agency will be presenting its findings in “weeks” after a two-year investigation into the roles played by Exxon Mobil and other fossil fuel or petrochemical businesses in promoting a “decades-long campaign of deception.” A representative for Bonta’s office stated that they have not released any new information.

Attorney General Letitia James of New York filed charges against PepsiCo last year, claiming the company’s plastic pollution caused a public nuisance and health hazards that it neglected to inform the public about while making false claims about recycling’s effectiveness.

As executive director of the State Energy & Environmental Impact Center at New York University School of Law, Bethany Davis Noll collaborates with state attorneys general on clean energy and climate issues. She stated that “it’s highly likely” that we will witness an increase in lawsuits of this type, and that “plastics has been a space [attorneys general have] been working on more and more.”

“A classic case of public nuisance,” she said, according to the complaint from New York, “and I’m certain that other states are looking at the same thing.”

Emeritus professor Pat Parenteau, senior fellow for climate policy at the Vermont Law and Graduate School, concurred, stating that larger states like New York and California “have the most muscle behind them” and that “it will take some time” before other states catch on.

With regard to the viability of recycling plastics, Bonta’s and James’ acts represent the first time that a state attorney general has opened an investigation or filed a lawsuit, respectively. However, this isn’t the first time plastics have been the subject of legal scrutiny.

An increase in cases alleging recyclability
According to NYU’s Plastics Litigation Tracker, the Natural Resources Defense Council initially contended that the Clean Water Act, which was only two years old at the time, obliged the EPA to restrict the discharge of plastics as a pollutant, which sparked legal action in 1974.

Since then, industry battles against state or local legislation prohibiting single-use plastic grocery bags or other plastics have resulted in at least fifty lawsuits, addressing a variety of issues.

Over the past five years or so, there has been a noticeable increase in lawsuits against companies that label products or packaging as recyclable, despite the low likelihood of processing and creation of anything new.

The state attorney general of Connecticut filed a lawsuit against Reynolds Consumer Products in 2022, claiming the business had deceitfully marketed its Hefty garbage bags as recyclable, despite the fact that no state recycling facility would take them. The attorney general of Minnesota filed comparable allegations against Reynolds and Walmart a year later. Both legal matters are still open.

Several environmental advocacy groups, such as the Last Beach Cleanup, the Sierra Club, and the Earth Island Institute, have filed deceptive accusations against companies that manufacture single-use plastic bottles.

These cases “have a mixed record in court,” according to Parenteau’s email.

“Instead of aspirational goals or puffery, which isn’t actionable, judges are looking for clearer regulatory standards for what constitutes misrepresentation, false advertising, or greenwashing,” the speaker went on.

“Recyclable” does not currently have a federal legal meaning. Although they are not legally binding, the Federal Trade Commission’s “Green Guides” provide some guidance on claims made about recyclability or recycled content.

Parenteau said, “We need more detail, but the most recent FTC Green Guides can be helpful.”

The FTC was supposed to release revisions to the 12-year-old standards this year, so more information might be forthcoming shortly. According to FTC spokesman Mitchell Katz, there is “no update yet” at the time.

The EPA estimates that we recycle around 9% of all plastics annually, but other researchers place that percentage closer to 5%. A plastic product’s potential for recycling depends on various factors such as the type of plastic, its color, density, any residual residue or other pollutants, the viability of end markets, sorting technologies, collection efforts, and others.

According to the plastics sector, increasing recycling activities and investing in them will help address plastic pollution. Environmentalists are less optimistic, citing decades of stagnant or declining plastic recycling rates in general, the present limits of mechanical recycling, and the high concentrations of microplastics.