The Earth Island Institute is attempting a novel legal gambit that attempts to hold companies that rely on plastic packaging responsible for the vast amounts of plastics ending up in the oceans and along beaches, saying those companies have misled the public about the efficacy of plastic recycling to protect their bottom line.
(CN) — If you leave Los Angeles by boat and head due west for the Hawaiian Islands, about halfway you will reach The Great Pacific Garbage Patch, a collection of floating trash comprised primarily of discarded plastic.
The rotation gyre of discarded rubbish has grown exponentially, increasing ten-fold every single decade since 1945, to its present dimensions of 600,000 square miles, or roughly the size of Alaska. It weighs an estimated 87,000 tons.
Despite images conjured in the press, the giant floating garbage patch is difficult to detect. It was only discovered in the 1990s. You can’t spot it from satellites and it’s even difficult to espy from a boat.
Its relative inscrutability is due to the fact that it is composed primarily of plastic, which continues to break down into smaller and smaller particles, eventually lingering in the environment as microplastics. But plastic products, which are nonbiodegradable, never completely vanish.
Instead, the microplastics accumulate in the ecology and often end up in the digestive systems of wildlife, accrue in large oceanic gyres like The Great Pacific Garbage Patch, or wash up along pristine beaches the world over, sullying the ecological and aesthetic components of some of the globe’s most scenic places.
While many of the solutions proffered by various organizations focus on the technological innovations that make clean-up possible, there is an environmental organization that has undertaken a novel approach to combating the scourge of global plastic pollution.
Earth Island Institute, a Berkeley, Calif.-based environmental nonprofit, sued a collection of the world’s largest food, beverage and consumer goods companies, saying their use of millions of tons of plastic packaging has resulted in polluted oceans, waterways and beaches.
“This is the first of what I believe will be a wave of lawsuits seeking to hold the plastics industry accountable for the unprecedented mess in our oceans,” said Josh Floum, Earth Island Institute’s Board President. “These plastics peddlers knew that our nation’s disposal and recycling capabilities would be overrun, and their products would end up polluting our waterways.”
The lawsuit names 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 as defendants.
But the novel legal theory at the heart of the case delves deeper than merely suing the above-named companies for plastic production; instead, the Earth Island Institute has predicated its complaint on the little recycle symbol the companies place visibly on each plastic product.
“The misrepresentation claims are premised on the fact that when consumers see the recycle symbol on the plastic packaging, they think that when they put it in a little blue bin it will be recycled,” Noor Rahman, an attorney for Earth Island, told Courthouse News in a recent interview. “But 90% of the time it can’t be.”
Rahman said the general public is likely unaware that less than 10% of the plastics that are collected for the purpose of recycling are actually used as material to make recycled products, most likely because the companies in question have been successful at marketing recycling as an environmental solution to single-use plastics.
“The way they’ve marketed their products has resulted in the mass proliferation of excessive volumes of plastic,” Rahman said.
The problem has only increased since the advent of the coronavirus.
During the peak of the coronavirus in 2020, plastic manufacturers made about 129 billion face masks and 65 billion pairs of plastic gloves every month. Gloves and masks ended up in the ocean in large amounts, where marine mammals and fish easily mistake the spindly items for jellyfish and other prey.
But while personal protective equipment was necessary to fight the pandemic, an early misunderstanding of how the virus spread — surface contamination versus aerosol drops — meant consumers relied on plastic bags for grocery shopping to a degree not seen in years. California reversed its plastic bag ban early on in the pandemic.
Consumers also relied more on single-use products as consumers switched to a take-out dining model. Starbucks banned personal cups in March and kept the ban in place throughout much of the summer.
Economics changed during the pandemic too, leading to even less plastic recycling than is typical. Plastic is a petroleum-based product, so when oil and gas prices plummeted precipitously in 2020, the price of creating virgin plastic fell as well. Making a plastic bottle from recycled rather than virgin material is about 83% to 93% more expensive, according to market analysts at the Independent Commodity Intelligence Services.
The corollary of this is that much of the plastics that are produced are collected, but few of it is recycled.
Jenna Jambeck, a researcher with the University of Georgia who investigates plastic collection and recycling systems, published a study in 2017 that found less than 10% of the 6.3 billion tons of produced plastics have ever been recycled.
“There are people alive today who remember a world without plastics,” said Jambeck when she published the study. “But they have become so ubiquitous that you can’t go anywhere without finding plastic waste in our environment, including our oceans.”
The pollution has grown worse in recent years, particularly after China stopped accepting plastics and other materials in 2018 from foreign countries. Previously, China served as the main destination for American recycling efforts, as it would collect it from consumers and send it to China. While much of the plastics sent to the East Asian nation would end up in landfills or discarded into the ocean, the situation is presently worse.
The United States started shipping its recyclable waste to Vietnam, Thailand and Malaysia in 2018, but those countries began to institute bans on recycling as well. Presently, the United States ships most of its recyclable items to Cambodia, Bangladesh, Ghana, Laos, Ethiopia, Kenya and Senegal, countries with lax or nonexistent environmental laws. As a result, much of the material is simply dumped finding its way into the environment.
The solution, according to Jambeck, is finding alternative materials to single-use plastics, particularly as our sophisticated waste collection systems have proven ineffective if the recycling rate overseas remains stable.
“We should be considering end-of-cycle at the design stage,” Jambeck said recently.
For Rahman, the role of the Earth Island Institute lawsuit is to make it more difficult for large companies that rely on single-use plastic to claim they are recycling the material.
“We want them to stop implying their plastics can be recycled,” the attorney said.
Earth Island Institute is celebrating a recent victory against the ten companies, as U.S. District Court Judge Haywood Gilliam Jr. granted the organization’s motion to remove the case from federal court and back into the San Mateo County Superior Court where the initial lawsuit was filed.
“Our lawsuit is about the harm caused by the defendants’ plastic products here in California, and Judge Gilliam rightly saw through their attempts to recharacterize our complaint in an effort to cause delay and obtain what they perceive as a more favorable venue in federal court,” said Sumona Majumdar, Earth Island Institute’s general counsel.
Majumdar and Rahman said that now that the case is back in state court, the defendants will be less able to create further delays to the case.
Another novel element of the case is that the Earth Island Institute is claiming the 10 companies in question are also harming the institute specifically by allowing plastics to proliferate in the oceans off of California, causing the nonprofit to expend enormous sums to effect beach clean-ups and other related projects.
“In recent years the cost and expense of cleaning California beaches, informing the public about plastic and the limitations of recycling, and aiding marine life that has been choked, starved, poisoned, or suffocated by plastic, has grown exponentially,” the institute said in the original complaint.
Rahman said that not only do they want the companies to stop misleading consumers about the effectiveness of plastic recycling, but they want them to pay for the clean-ups and information campaigns too.
“They should pay for the cleaning and to educate consumers,” she said.
Courthouse News reached out to all ten of the defendant companies named in the lawsuit. None wished to comment on the record citing the pending litigation, but some did point to new initiatives to enhance sustainability in their packaging materials.
For instance, Coca-cola Company has pledged to make 100% of its packaging recyclable globally by 2025, while promising to use at least 50% recycled material in its packaging by 2030.