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Calif. files suit over biodegradable bottle claims

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October 26, 2011

SACRAMENTO, CALIF. (Oct. 26, 3:50 p.m. ET) — California Attorney General Kamala Harris has filed suit against bottled water companies Aquamantra Inc. and Balance Water and their bottle supplier, ENSO Plastics, charging that the companies’ claims that their bottles ‘biodegrade’ are false.

The lawsuit, filed in Orange County Superior Court on Oct. 26, seeks to have the bottles pulled off retail shelves in the state.

The issue of biodegradable plastics has been a bone of contention for plastic recyclers for more than two years, with both the National Association for PET Container Resources, and the Association of Postconsumer Plastic Recyclers challenging the suppliers’ claims.

However, neither APR nor NAPCOR were party to the lawsuit.

Harris said the labeling on the Aquamanta and Balance Water water bottles describes them as biodegradable, but that the claims are not supported by evidence, and misleads consumers into thinking they can responsibly dispose of them in backyard composting or landfill.

“The manufacturers of these bottles are taking advantage of Californians’ concern for their environment,” said Harris. “Consumers are led to believe they are being environmentally friendly by choosing these bottles. In fact, they could be further damaging our natural resources.”

All three companies defended their products.

“We stand behind our technology and the claims that our company makes in stating standard plastics enhanced with our biodegradable additive are fully recyclable, and, if placed in an environment with microbes, will naturally biodegrade,” said Danny Clark, president of ENSO Bottles LLC in a statement emailed to Plastics News.

Clark said that he could not comment specifically about the lawsuit as the company had not yet read it.

But he did say that although he “fully supports the premise” of the California law that is designed to prevent “greenwashing”—and on which the lawsuit is based, he does “not agree that banning or preventing the use of proper labeling of package as a step toward solving that [greenwashing] problem.”

“We believe consumers should be allowed to know if their product packaging is biodegradable, and if so, provided with the details of how and in what environments the packaging will biodegrade,” said Clark, whose company is based in Mesa, Ariz.

“It is also unfortunate that this law specifically allows the use of product packaging which is compostable to be labeled as ‘compostable,’ but for competing technologies such as ours, makes it illegal for companies to properly label their packaging as ‘biodegradable,’” said Clark. “It makes one question the true intent behind the law.”

Aquamantra Inc. president Alexandra Teklak expressed frustration at the lawsuit.

“This is a very sad state of our government to sue three companies that have went out on a ledge to do something good about the environment,” said Teklak in a phone interview. “There is 100 percent evidence to support the claim and we have sent that to the attorney general.”

Teklak defended the integrity of her company, based in Dana Point, Calif., and pointed that a picture that the state filed as an exhibit with the complaint shows a hang tag that the company no longer uses. “I wrote them a detailed letter stating how we haven’t used them in over two years,” she said. “We don’t make them and will not.’

“I would never put any claim on there that isn’t 100 percent accurate and didn’t have proof,” declared Teklak, whose company was the first bottler to begin using the ENSO additive in June 2009. “ENSO has some really serious scientists and tons of proof backed by testing.”

Nevertheless, she said Aquamantra “is going to comply with whatever the attorney general is requesting—even though we don’t agree with it.”

“While we still know that our bottles are biodegradable, we will comply with the attorney general and the law to remove the word biodegradable,” said Teklak. “We are pretty much all out of labels. Our next run of labels will not have the word biodegradable.”

Balance Water Co. LLC, based in New York, also said it would take the word biodegradable off its bottles.

California law does not allow food and beverage packaging to have biodegradable on it,” said co-founder and partner Martin Chalk. “We will adhere to that and we will change our packaging to reflect that. We will make sure we remove biodegradable from the label.”

But he was quick to add, as Aquamantra did, that “we stand behind the bottle.”

“It’s a good bottle,” he said. “The evidence given us and the scientific accreditation was very strong.”

Both Aquamantra and Balance Water said that they hadn’t made a decision yet on whether to stop using the ENSO bottle.

If it is needed to comply with state law, Aquamantra would use a different bottle, said Teklak. But she said she doesn’t know if that is the case.

Chalk said that Balance Water is discussing that issue, but it, too, hadn’t made a decision yet.

“I’m more upset about the claim of greenwashing,” said Chalk. “I come from family of environmentalists. We felt this was a more sustainable approach. This wasn’t done for a marketing reason,” he said, pointing out that the ENSO bottle did not increase the company’s rate of sales in California.

“We put a lot of effort into implementing the ENSO bottle because we thought we were doing something great for the environment,” Chalk said. “It cost us a lot of time and money to use and actually costs us more to use than other bottles because the ENSO bottle isn’t easy to mold.”

All three defendants in the lawsuit defend the scientific testing behind ENSO’s biodegradability claims. But at least one organization has conducted its own tests which suggest that ENSO’s test results are misleading.

A case in point: The Biodegradable Products Institute contracted earlier this year to have two separate sets of tests conducted on the water bottle used by Aquamantra bottle that uses an additive from Enso.

The first test showed a plateau in the degradation process after 60 days; the second showed no degradation at all after 45 days. “They [ENSO] did a 30-day test and extrapolated that the material will biodegrade in four years,” said Steve Mojo, executive director of BPI, during the Bioplastek conference in New York in late June.

Mark Murray, executive director of Californians Against Waste, further questioned the biodegradability claims of the bottles, saying the additives have no environmental benefits and argued that the bottles wouldn’t break down in the ocean.

“These falsely labeled bottles pose several serious problems,” said Murray. “Consumers are being deceived. The chemicals added to these bottles to theoretically allow them to break apart have zero environmental benefit. They simply cost consumers more and fill up our landfills just like any other bottle.”

“Some consumers may be falsely deceived into thinking that the ‘biodegradable’ claim means these plastic bottles will break down in the ocean environment,” Murray said. “They won’t. If these bottles become ocean litter, they will remain intact for decades or longer as floating ocean pollution.”

In a prepared statement, APR technical director Dave Cornell pointed that since mid-2009 the association “has repeatedly asked those who sell and who use degradable additives ... for the data that support the claims of bottles containing the additives being recyclable and have seen none.”

“APR has led the effort to force these marketers of degradable additives to validate their marketing claims that the use of the additives does not impact the recycling of PET bottles [or] the second use of material into products like bottles, strapping, or carpeting,” added APR executive director Steve Alexander. “We have worked to educate the California Attorney General’s office on these troubling and unsubstantiated claims and have asked for their help in curbing the threat to the practice and reputation of plastic bottle recycling.”

The lawsuit estimates that PET recycling is a $100 million business in California, and argued that the bio-bottles represent a contamination threat to that industry, because, in appearance, they look identical to PET water or soft drink bottles.

“The chemical contamination from these bottles is catastrophic for our business,” said Ed Byrne, CEO of Visalia, Calif;-based Peninsula Packaging in a prepared statement. “When we remold products, the different types of plastics melt at widely varying temperatures. It is extremely dangerous to our technicians to deal with these problems. Moreover, consumers reject products packaged in contaminated containers, simply because of the disgusting appearance.”

Peninsula Packaging makes clear plastic clamshell containers, using recycled PET, for strawberries, muffins, salads and other foods.

Calif. Sen. Mark DeSaulnier, D-Concord — who authored the California legislation in 2008 that prohibits marketers in California from labeling plastic food or beverage packaging as biodegradable unless it meets ASTM degradability guidelines — also applauded the lawsuit.

“I am pleased that the Attorney General has been able to use our law to crack down on out of state bottle manufacturers who are blatantly ignoring the law and marketing environmentally bad products to

California companies, said DeSaulnier in a statement. “Consumers are being misled by companies who use environmentally friendly ploys to sell their products, when in reality there is no benefit.”