Plasticked Off

Over the years, I’ve blogged about the massive pollution from the use of non-biodegradable and slow-biodegradable plastics, as well the toxic impact of microplastics, in our environment and to a certain extent, in our bodies. We all can see the obvious, especially where the visuals are dramatic, as with the massive Great Pacific Garbage Patch illustrated by the above pictures. But plastics, particularly disposable plastics, are still in wide use worldwide, despite bans on plastic bags, straws and food containers in a few jurisdictions. More than 90% of plastic packaging cannot even be recycled, while the cost and pragmatics of recycling remain economically challenging anyway. But as the threats from massive of new plastic containers, etc. in our environment reach life-impacting proportions, laws everywhere are attempting to stem this toxic tide. Bottom line: are these laws enough and are they really enforceable?

Well, there’s a big lawsuit that is asking those questions. And if one substantial jurisdiction finds fault, how does that translate to the rest of the world? “[On February 27^th], Earth Island Institute and Plastic Pollution Coalition, represented by Cotchett, Pitre, & McCarthy, filed the first major lawsuit against Crystal Geyser Water Company, The Clorox Company, The Coca-Cola Company, Pepsico, Inc., Nestlé USA, Inc., Mars, Incorporated, Danone North America, Mondelez International, Inc., Colgate-Palmolive Company, and The Procter & Gamble Company for polluting our waterways, coasts, and oceans with millions of tons of plastic packaging. The lawsuit was filed in California State Superior Court in the County of San Mateo alleging violations of the California Consumers Legal Remedies Act, public nuisance, breach of express warranty, defective product liability, negligence, and failure to warn of the harms caused by their plastic packaging…

“Through this lawsuit, Earth Island is seeking, among other things, to recover the significant resources it expends to prevent and mitigate the effects of plastic pollution on humans, wildlife, oceans, and waterways in California, where the impacts are particularly acute. For example, an October 2019 report by the San Francisco Estuary Institute revealed that the San Francisco Bay has some of the highest levels of microplastics measured anywhere to date, and many of the particles appear to be linked to single-use plastic items. And a June 2019 study by the Monterey Bay Aquarium Research Institute found that microplastic concentration in Monterey Bay exceeds that of the Great Pacific Garbage Patch, and that the primary source was plastic associated with food, beverage, and other consumer goods. The same study also found that small marine animals are consuming these microplastics, thus introducing the particles into the food web that feeds California.”  PlasticPollutionCoalition.org, February 27^th.

Mark Wilson, writing for the March 6^th FastCompany.com, explains why this particular litigation could be game changing: “The case is important to watch, because it argues that plastic isn’t just a pollutant, but an actual design defect these companies are liable for producing. As the complaint outlines in clear detail: More than 90%of plastic packaging can’t be recycled, so it’s discarded as waste. The single-use packaging ends up in the oceans forever. The societal cost of that single-use plastic waste is far greater than any benefit to consumers. And these companies could be researching and implementing all sorts of alternatives.

“‘Plastic waste is a worldwide problem that demands thoughtful solutions,’ says an American Beverage Association spokesperson, which represents Coca-Cola and PepsiCo, in response to the suit. ‘America’s beverage companies are already taking action to address the issue by reducing our use of new plastic, investing to increase the collection of our bottles so they can be remade into new bottles as intended, and collaborating with legislators and third-party experts to achieve meaningful policy resolutions.’

“Andrea Gass, a former law clerk for the EPA and current Library Research Fellow at Arizona State University who specializes in reducing plastics use, walked us through the complaint in detail. As she explained, it’s unique in that, rather than arguing against plastics through established environmental law, the suit is claiming all sorts of other things about producing plastic: that the companies were negligent in producing a product that couldn’t actually be recycled (recycling standards are notoriously varied and confusing); that they failed to warn consumers about the dangers of plastics (like a cigarette label warns you about your health); and that they have even created a product that’s become a ‘public nuisance’ by polluting California coasts.

“Many of the suit’s claims will be tricky to argue. ‘If it’s Coca-Cola directly dumping bottles into the ocean, it’s easy to sue them under the Clean Water Act. You can figure out who dumped it into the ocean pretty easily,’ says Gass. But she points out that there is so much plastic in the ocean, indirectly attributable to so many companies, that it’s difficult to pin down the responsibility of any one company (despite what research says). ‘Given that we don’t have any kind of direct dumping—this went through the stream of commerce—in some degree [courts] are going to blame the consumers for disposing of it improperly,’ she says.

“But one of the claims stands out to Gass as something that could be litigated successfully: The notion that plastic bottles and goods are a ‘design defect’ by nature because they do more societal harm than good. And the main reason companies are using them at all is that they’re cheap to produce.

“‘This is sort of new territory,’ says Gass. ‘What they’re claiming [is that] because we recognize plastic has this problematic tendency to break down into microplastics and it never goes away, that’s a product defect where the utility of the product is outweighed by the harm it causes to society, essentially, or the harm it poses to customers. I think that’s an increasingly valid argument because we do have a lot of alternatives to plastic now.’”

You can see the parallels to the earlier tobacco litigation process. For decades, tobacco products were sold without a second thought about health issues. Some early cigarette ads even touted doctors’ endorsements. But it was soon apparent to the big manufacturers that they were responsible for massive health issues. And like the plastics companies, while it was not often clear which tobacco company was culpable for what (people switched brands all the time, and then there was the harm from secondhand smoke), general liability just for being in the tobacco space was enough. Cigarette companies fought like hell against regulation… and ultimately lost and lost big. And unlike tobacco, for so much in the plastics world, there are viable alternatives. It just might be time to address yet another huge source of toxicity… just the way we slammed big tobacco. A decision in California will probably design the battle for years to come.

              I’m Peter Dekom, and when old practices are discovered to impose maximum toxicity on masses of people and animals, there is no excuse not to deal directly with the source of the problem.