Lawsuits Allege Plastic Bags are Non-Recyclable & Therefore Illegal in California

On June 3, 2022, The Last Beach Cleanup filed two lawsuits against retailers Gelson’s Market and Stater Brothers for allegedly selling illegal, non-recyclable plastic bags to California consumers in violation of SB270, which was voted into law by California voters in 2016. These lawsuits are the latest in a string of attempts by activists, NGOs, and representatives of California’s overburdened recycling infrastructure to see California’s laws regarding non-recyclable plastics enforced.

The Last Beach Cleanup has used civil litigation in the past to enforce labeling laws against deceptive recycling claims made by many companies including Coca-Cola, Procter & Gamble, Late July Snacks, Gerber, and L’Oreal as part of TerraCycle programs.

Why Plastic Bags are Allegedly Illegal in California

For the past six years, both California voters and the state legislature have taken progressive steps to reduce California’s consumption and disposal of single-use plastics statewide. In 2016, Californians voted to pass Prop 67, which banned the use and sale of plastic grocery bags. California’s plastic bag law requires the plastic bags to be “recyclable in the state,” which The Last Beach Cleanup and the California Statewide Recycling Commission claim they are not.

A 2020 report by Greenpeace USA found that only plastics and jugs made from plastics PET#1 and HDPE #2 (out of hundreds of types of plastic products) could legally be claimed to be recyclable in the United States, and even then recycling capacity is limited to an estimated 22.5% for PET #1 and 12% for HDPE #2. Today, the overall U.S. recycling rate is estimated at just 5 to 6% for all plastics combined. Plastic bags are typically made of LDPE plastic #4, a type of plastic that researchers have found breaks up rapidly into microplastics.

In October 2021, California Governor Gavin Newsom signed several historic pieces of legislation into law, intending to transform California from a top exporter of plastic pollution to a leading reducer. Among these new laws was an ordinance to remove the circular arrow label from single-use plastic items that cannot actually be recycled.

But the laws will only be effective if they are enforced. 

It’s the wild, wild West of product claims and labeling for “recyclable” plastics right now, and there’s no sheriff in town.

Jan Dell, Founder of The Last Beach Cleanup

According to The Last Beach Cleanup, an estimated 2 billion plastic shopping bags are distributed in California each year. At a glance, consumers see the circular arrow label that for decades has become the symbol of recyclability. Many of these bags and films, however, now contain fine print instructing consumers to “check locally” or drop them off at participating stores to be recycled. When they do reach store recycling programs, there is no evidence that the plastic bags are being recycled. A lack of transparency around where these bags are being sent ensures their final destination is hidden. According to the Berkeley Ecology Center, grocery store Berkeley Bowl said in 2019 that the plastic bags it collected were not recycled and instead were sent to a landfill, which prompted the store to end its plastic-bag collection program altogether. 

More often, plastic bags and films are mistakenly placed by consumers in curbside recycling bins, causing equipment clogs and contamination in paper bales. California paper bales are exported to pulp mills in Indonesia and other countries where the plastic is removed from the paper and dumped to the environment or burned.

Amazon Pouch with How2Recycle Label found on riverbank near pulp mill in East Java, Indonesia (Credit: Ecoton, 2019)

California Urged to Enforce Existing Labeling Laws

On December 3, 2021, the California Statewide Commission on Recycling Markets and Curbside Recycling sent an open letter to Governor Newsom and California Attorney General Rob Bonta asking that California’s laws with respect to labeling be enforced.

Flexible plastic bags and film are a major source of contamination in curbside recycling bins. The flexible plastic materials are harming curbside recycling systems by clogging machinery in material recovery facilities (MRFs) and fiber processors. There is not a comprehensive store takeback system for plastic bags or film in California. Flexible plastic bags and films that depict the word “recycle” or the chasing arrows recycling symbol cause consumer confusion and contribute to contamination.

Heidi Sanborn, Chairperson, Richard Valle, Vice-Chair, and all Commissioners, California Statewide Commission on Recycling Markets and Curbside Recycling

In February 2022, Plastic Pollution Coalition and 74 NGOs sent a letter to Governor Newsom and Attorney General Bonta supporting the California Statewide Commission on Recycling Markets and Curbside Recycling’s request to enforce California’s existing law banning the labeling of non-recyclable plastics with the circular arrow symbol. The full letter and list of signers can be read here. 

Californians are being deceived by instructions to “Return the plastic bag to a participating store for recycling” and sent on a wild goose chase with no benefit. It is time to end The Great Store Drop-Off Charade in California. There is not a functioning store take-back system in California because (1) it is not required by law and (2) mixed post-consumer plastic film waste is worthless so there is no reason for stores to voluntarily collect it.

NGO letter sent to Governor Newsom and Attorney General Bonta in February 2022

In April 2022, California Announced Investigation Into Big Oil “Deception”

Though Governor Newsom and Attorney General Bonta have yet to respond to the NGO letter, California’s Department of Justice in April 2022 launched an unprecedented investigation into the fossil fuel and petrochemical industries for decades of misinformation as to the recyclability of plastic products

At the center of the investigation is ExxonMobil, the fossil-fuel giant who, along with major plastic polluters like Coca-Cola, PepsiCo, and Nestlé, has for decades contributed untold sums of money to Keep America Beautiful, a greenwashing media public service campaign and nonprofit organization that, in the 1970s, began producing PSAs and commercials blaming consumers for plastic pollution and touting plastics recycling. The myths this messaging created continue to this day, and an investigation into ExxonMobil will determine what role the company has played in deceiving the public and what laws they may have broken in the process.

While many activists and NGOs celebrated the news of this historic investigation, there was also disappointment with the California Department of Justice’s silence with respect to the continued illegal sale of non-recyclable plastic bags and films. Allowing plastic bags to continue to carry the recycling symbol helps perpetuate the plastic recycling myth among the public, which is a form of plastic industry greenwashing.

Perhaps our request to the State Attorney General helped spur this larger investigation. This is welcome action at a grand scale, but I’m disappointed that a California authority hasn’t yet taken up the investigation into illegal sales of thick “reusable” plastic bags that should be stopped now.

Jan Dell, Founder, The Last Beach Cleanup

What You Can Do

Although the lawsuit by The Last Beach Cleanup targets specific California retailers, the enforcement of California laws holds true for all retailers that do business in California. The implication is that essentially all stores are breaking the law by selling plastic bags. 

California is in fact lagging on plastic bag laws. New Jersey has banned both single-use paper and plastic bags and now only allows reusable bags.

While further action from state and local authorities is yet to be seen, you can make a difference now and pledge to refuse single-use plastic bags, even those that include recycling labels. These bags clog recycling infrastructure and strain an already overtaxed recycling system.

NBC4 Los Angeles
June 30, 2021

Reports from the Seattle, Washington area, show that bald eagles – the American national bird – are taking hazardous waste and plastic pollution from a local landfill and dropping it in suburban back yards.

The federally protected birds are visiting the open-air Cedar Hills Regional Landfill in King County, which was supposed to have been closed years ago, but a proposed expansion has kept it open.

Popular Mechanics reports that over two tons of trash are brought to the location every day, and landfill staff estimate that around 200 eagles have made the area their home, scavenging for anything they can find and dropping their scraps everywhere else.

“Anybody that lives within close flying distance of the landfill knows that the eagles deposit this stuff everywhere,” said resident David Vogel to the Seattle Times.

At a city council meeting, Vogel held up a sealed plastic bag containing human blood that he said he’d found in his yard, just west of the landfill property.

Trash and plastic pollution can choke, poison, or otherwise harm eagles. Over 260 animal species, including invertebrates, turtles, fish, seabirds, and mammals, have been reported to ingest or become entangled in plastic debris, resulting in impaired movement and feeding, reduced reproductive output, lacerations, ulcers, and death.

Avery Thompson of Popular Mechanics wrote:

There’s something almost poetic about the American national bird reminding people that the trash they throw in a landfill doesn’t simply disappear. In a way, these birds are a visceral demonstration of the usually hidden consequences of extreme consumption. We create too much trash, and that much trash creates consequences. That could mean eagles dropping biohazard containers in your front lawn, or it could mean nearly 20 tons of plastic washing up on one of the most remote beaches in the world.

While some short-term solutions like closing a landfill or pulling trash out of the ocean might temporarily fix the problem, the only way to really live in a world where our trash doesn’t come back to haunt us is to be smarter about how much of it we create.

Dianna Cohen, Co-Founder and CEO of Plastic Pollution Coalition, said: “The Eagle, the National bird  of U.S. bringing bits of hazardous waste and plastic pollution back to our yards is both ironic and a wake up call. It’s time to stop polluting the planet with plastic for the health of humans and animals, and for the sake of the birds and the bees.”

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By Jan Dell, Independent Engineer

Recycling rates for waste plastic are sinking in the United States, so why is recycling still being promoted as the solution to plastic pollution? When stakeholders ask companies to act to reduce plastic pollution, the companies often respond with statements about their commitment to recycling and plans to use recyclable materials for packaging.

The relentless focus on the future path for recycling plastic packaging flies in the face of the hard facts: plastic waste generation is increasing in the U.S., exports counted as recycled have cratered due to China’s ban, costs of recycling are increasing since many trucks are needed to collect the widely dispersed waste, and plastic production expansion is keeping the prices of new plastics comparatively low. These factors work against the key premise that waste plastic will someday have sufficient value to drive reclaiming it rather than disposing of it.

It’s been frequently said: A definition of insanity is doing the same thing over and over again and expecting a different outcome. We’ve seen promises, goals, ambitions, and aims from companies for nearly 30 years to increase recycled content and reduce the number of plastic bags they hand out. During that time, plastic use and pollution has increased as well-documented by Jenna Jambeck, Roland Geyer, and other researchers. The United States ranks 20th on the list of countries contributing to plastic pollution in the ocean with an estimated 88 to 242 million pounds/year of plastic marine debris. The annual International Coastal Cleanup confirmed the evidence of plastic pollution on U.S. coasts in 2017 when more than 3.7 million pounds of trash, the majority of it plastic, was collected by 209,643 people on a single day.

Participating in a clean up? Visit the Break Free From Plastic Brand Audit Toolkit.

In July 2018, the United States Environmental Protection Agency (USEPA) published solid waste and recycling statistics for 2015. Since we don’t treasure it, it should come as no surprise that it takes so long to measure it. An unwelcome surprise is that U.S. plastic waste generation rose while the amount recycled declined from the previous year. And that happened while China was still importing nearly a million tons of our plastic waste. But that has dramatically changed. According to Resource Recycling, during the first half of 2018, 30 million pounds were exported to China, down from 379 million during the first half of 2017. Plastic waste exports to China are further challenged by China’s new 25 percent tariff on “recovered” plastics, which began on August 23, 2018. Since China isn’t accepting our boatloads of plastic waste any longer, the 2018 U.S. plastic recycling rate must be even lower than in 2015.

Plastic pollution is a blight in our cities and on our landscapes and harms our rivers and oceans. As an independent engineer on a quest to end litter now, I don’t want to wait until 2021 to find out how low our 2018 plastic recycling rate is to dispel the myth that recycling has a practical, probable chance of creating sufficient value for plastic waste that solves pollution. We can’t afford to be distracted from working on serious actions now.

Based on USEPA data, Institute of Scrap Recycling Industries (ISRI) trade statistics, and industry news source Recycling Resources, I estimate that the U.S. plastic recycling rate will sink from 9.1% in 2015 to 4.4% in 2018. The recycling rate could drop to 2.9% in 2019 if other countries in Asia follow China’s path on import bans or the proposed Basel Convention amendment prohibits the U.S. from shipping plastic waste to those countries.

While it’s not possible to make an exact prediction, this is a solid engineering estimate of material flows based on historical data and current events. Perhaps the recycling rate will be slightly higher if exports increase or, even better, plastic waste generation decreases.

Most importantly, the projected <5% U.S. plastic recycling rate in 2018 should be a wake-up call to the false promise that the existing voluntary, economic-driven U.S. recycling system is a credible solution to plastic pollution. It’s time to implement real solutions to plastic pollution, particularly the reduction of single use plastics in “on-the-go” situations that have the highest likelihood of polluting our environment. Practical solutions include ending the distribution of plastic bags, plastic straws, and expanded polystyrene foam containers from fast food and retail operations. A proven way to reduce plastic bottle pollution exists and could be implemented today: beverage and retail companies should be mandated to operate reverse vending machines and incentivize container return everywhere that they sell beverages in plastic bottles.

Projection Basis and Assumptions:

The traceable account of the plastic waste generation and recycling rates is provided below. It has been peer reviewed by a diverse group of people working in the environmental arena. The author welcomes being informed of other relevant and credible datasets that may change the estimation and will update the calculation and this article as appropriate.

U.S. Plastic Recycling Rate

Calculation Basis:

1)  Total U.S. plastic waste generation grows 3.8% per year (2015 vs 2014 growth rate from USEPA) from 34.5 million tons in 2015 to 38.5 million tons in 2018.

2)  U.S. plastic recycled remains equal to 2015 (0.94 million tons).  There is no solid evidence that plastic recycling capacity or company purchases have increased since 2015.  Conversely, according to the 2016 NAPCOR PET Container Recycling Activity report, 7 of 28 PET recyclers shutdown removing 16.6% of processing capacity.  The economics of plastic recycling will continue to be challenged by expansion of new, cheap plastic production on U.S. Gulf Coast (as acknowledged by the Plastics Industry Association in a study of polyethylene film recycling)

3)  U.S. plastic waste composting weight remains at zero because industrial composting facilities for municipal solid waste are not available in the U.S.

4)  U.S. plastic waste burned for energy generation remains equal to 2015 because new waste-to-energy facilities have not come online and some have closed.

5)  2018: China has imported only 150 million pounds of plastic waste from U.S. (according to Resource Recycling citing U.S. export figures).

6)  2018: Other countries import same waste plastic weights as in 2017.  This is a reasonable estimate because while several countries initially increased imports, they are now issuing temporary bans and import restrictions.

7)  2019: China and Hong Kong import zero plastic waste from U.S.

8)  2019: Other Southeast Asian countries import zero plastic waste from U.S. due to their own concerns on environmental degradation and/or restrictions by Basel Convention (proposed by Norway).

*An earlier version of this article misattributed the insanity quote to Albert Einstein.

Jan Dell, PE,  is a registered chemical engineer and author of The Last Beach Cleanup (to be published in 2019). Jan has worked with companies in diverse industries to implement sustainable business and climate resiliency practices in their operations, communities and supply chains in more than 40 countries. Appointed by the White House Office of Science and Technology Policy, Jan was a member of the U.S. Federal Committee that led the 3rd National Climate Assessment from 2010 to 2014 and the Vice Chair of the U.S. Federal Advisory Committee on the Sustained National Climate Assessment in 2016-2017. Send her an email here.

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Take the pledge! Refuse single-use plastic.

By Sandra Curtis

A NEW pilot study report ReThink Plastic has demonstrated that changing behavior can reduce the health hazards associated with the toxic chemicals in plastic. Plastic Pollution Coalition served as co-investigator along with Child Health and Development Studies for the pilot study, funded by California’s Breast Cancer Research Fund.

According to the report, the study was effective at reducing exposure to chemicals in plastic with change in nearly every behavior queried on the pre- and post-test surveys being statistically significant and in the desired direction. 

Based on these findings and with the funder’s encouragement, the investigator team submitted a three-year grant proposal to expand the study. 

Goal of the Pilot Study

The chemicals used in the manufacture of many plastics are known to mimic estrogen activity. There is strong scientific evidence linking these “environmental estrogens” to breast cancer. The ReThink Plastic study was designed to reduce exposure to these chemicals using simple, practical behavior change and to spread the study messages to reduce plastic use.

Findings

The ReThink Plastic study was successful at reducing exposures to harmful chemicals in plastic which mimic estrogen. The results showed that in a short education program, participants can significantly change their behavior. Statistically significant change in the desired direction was noted on nearly every behavior queried on the pre- and post-test surveys.

Further, the ReThink Plastic study was successful at getting people to talk to members of their families, friends, and communities to spread the study messages.

The Study

Ninety-Three (93) participant were recruited from the San Francisco East Bay through African American Churches and local community colleges. After taking a pre-test, they were presented with a 45-minute education program conducted by the co-investigators. A subset of the group, post-menopausal women, were recruited to take a blood test to assess their overall estrogen levels.

Participants were instructed to reduce their use of plastic, specifically focusing on food purchase, preparation, and storage for a month. A follow-up discussion session was conducted one month later in which the participants took a post-test.

During the month between the two study sessions, participants were asked to engage in the steps below and to disseminate these messages to family and friends:

  • Use glass or stainless steel water bottles. 
  • Never microwave food in plastic containers.
  • Store food in glass or ceramic containers. 
  • Skip canned foods and beverages.
  • Reduce take-out food.
  • Don’t handle receipts with bare hands. (If you do, wash with soap and water as soon as possible and DO NOT use hand sanitizer).

Participants were willing to provide blood samples and the AroER tri-screen blood test that measures overall estrogenic activity showed very promising preliminary results. Further testing is needed.

 

 

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Screen Shot 2018-05-10 at 1.45.50 PM.png

A basic assumption of the study was that 80 percent of people’s exposure to the estrogenic chemicals in plastic come from food purchase, preparation, and storage. The pre and post test focused on the following behaviors.

  • Shopping
  • Eating/drinking
  • Heating food
  • Spreading Messages

Message Spread

Participants were asked to talk to family, friends and social contacts about the six Study Messages. From 57 of the original group participates the message was spread to 539 recipients.

With the results of the pilot study now available, the ReThink Plastic team of investigators awaits news of funding for the full three year grant. In addition, the team awaits news on funding for the additional pilot study of the AroER tri-screen blood test’s validity which will assess overall estrogenic activity in the body, in lieu of testing for specific chemicals.

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A new report released by the Center for International Environmental Law (CIEL) raises new and significant questions about the economic rationale for the massive wave of new infrastructure investments in plastics and petrochemicals. Untested Assumptions and Unanswered Questions in the Plastics Boom highlights global changes that threaten to dramatically disrupt the plastic industry at both ends of its supply chain, fundamentally altering both the costs of plastics production and the demand for plastic products.

As companies ramp up investments to create more plastic, they are banking on plastic infrastructure being profitable for decades to come. This assumes that demand for plastic will continue increasing and that plastics production will continue to be heavily subsidized by demand for the fossil fuels that supply chemicals critical to plastic production. However, the new report exposes changes in the economy, government regulations, and consumer attitudes worldwide that could make these investments much riskier than previously assumed.

“The fossil fuel and plastic industries are both undergoing major disruptions but are continuing to operate under business-as-usual assumptions,” said Steven Feit, CIEL Attorney and lead author of the report. “Even as the phase-out of fossil fuels threatens to make plastics production more expensive, public pressure and government actions to limit plastic pollution are poised to reduce demand for disposable plastic in the years ahead. The industry will be increasingly squeezed from both sides: supply and demand. Investors (and communities) that don’t challenge these assumptions and demand clear answers about these projects are putting money — and livelihoods — at risk.”

As fossil fuels provide the primary material for plastic production, the shale gas boom in the United States has fueled a massive influx of investment in new and expanded plastic production infrastructure. But to meet their commitments under the Paris Agreement, governments around the world have agreed to phase out fossil fuels, which will make plastic production more expensive. At the same time, consumers are demanding an end to disposable plastics, governments are banning or taxing single-use plastic products, and the United Nations is undertaking an international campaign to reduce marine plastic pollution. These shifting attitudes — at every level — could mean decreased demand for plastic.

“These changes raise serious questions about the industry’s mad dash to expand the fossil plastics industry when it is clear that both fossil fuel use and plastic use must rapidly decline,” says co-author and CIEL President Carroll Muffett. “We already know the planet can’t afford these new plants. The question is: Why do investors think they can?”

This new report builds on CIEL’s Fueling Plastics research series that exposes the links between the fossil fuel and plastic industries, the massive wave of investments planned to expand plastic production infrastructure, and how long the plastics industry has known that their products pollute oceans.

Take Action to stop plastic pollution.

Join our global Coalition.