ACC asks federal court to limit California's recycling probe

The American Chemistry Council is asking a federal judge for quick relief from California Attorney General Rob Bonta's ongoing probe into whether the industry is deceiving the public about the potential of recycling to solve plastic waste challenges.

In a June 13 filing, ACC asked U.S. District Judge Amit Mehta in Washington to block Bonta from enforcing an investigative subpoena, arguing that Bonta is essentially retaliating against ACC for its views on plastics recycling policy.

Bonta, for his part, denied he was retaliating. He told the court in a June 25 reply brief that he's seeking legitimate information to determine if the industry is honest in its public statements.

ACC wants Mehta to issue a temporary restraining order against the California attorney general and to schedule a hearing quickly, within 21 days of its filing.

ACC's petition has attracted some influential allies. The U.S. Chamber of Commerce and other Washington associations filed a brief backing the chemical council.

ACC argued Bonta's actions have forced it to tone down its policy advocacy, particularly at the Federal Trade Commission, where that agency is rewriting its environmental marketing rules, including for plastics recycling.

"Bonta's investigation is retaliatory, based exclusively on ACC's participation in the FTC's notice-and-comment process, and intended to punish ACC for the way it has exercised its constitutional rights to speak, associate with its members and petition the government," ACC said.

As well, ACC said Bonta's subpoena violates its First Amendment rights, and it presented affidavits from several companies backing its claims.

But Bonta urged Mehta to dismiss ACC's federal lawsuit and let the case move forward in California state court, where the attorney general has filed documents to enforce the subpoena.

"ACC will have a full and fair opportunity to litigate the constitutional claims that it presents here," in the California court, Bonta said.

The legal fight burst into public view May 24, when ACC and the Plastics Industry Association filed separate but related lawsuits in federal court in Washington, seeking to block Bonta, who filed to enforce his subpoena May 28 in California state court.

A key part of the legal tug-of-war is an attempt by Bonta to obtain internal ACC documents about opinion polling it conducted that shows favorable public attitudes toward chemical recycling.

ACC presented that polling data to FTC's ongoing Green Guides review, where the question of how to handle marketing claims about chemical recycling has emerged as a key point of disagreement.

ACC said its polling shows more than 70 percent of the public views chemical recycling favorably.

But Bonta told the court that the polling "may relate to ongoing unlawful consumer deception" and that his investigation is examining whether industry groups are hyping the potential of chemical recycling, or advanced recycling as it's also called.

"The investigation includes an inquiry into allegations that the plastics industry and its trade associations misled consumers regarding the recyclability of plastics, including through false representations regarding advanced recycling," Bonta said in his filing.

Bonta has not been neutral on the topic.

He and other state attorneys general also filed comments at the FTC's Green Guides review last year, where they expressed skepticism about chemical recycling, a point that ACC says bolsters its case that it is being singled out for its viewpoints.

ACC presented affidavits from several member companies and senior staff detailing how they see Bonta's subpoena limiting their speech. With the court's permission, ACC filed public versions of the affidavits with some identifying information redacted.

An executive with one unidentified firm, described as a chemical recycling company, said it had expected that its internal communications with ACC would remain private.

"Had we known that [redacted] communications related to developing the ACC's comments on the Green Guides would be circulated outside the working group, [redacted] would have been less forthcoming and much more circumspect in what we had to say," the executive said. "[Redacted] needs to be able to freely and frankly express its honestly-held, legal, public policy-based and scientifically-grounded views, especially when those are opposed by many well-funded NGOs [non-governmental organizations], powerful lobbyists and actors."

Similarly, an executive at another ACC company said it feared "political harassment and reprisals" if internal comments within ACC were disclosed. The executive said they worked on ACC's submission to the FTC's Green Guides.

"I would not have communicated as candidly about these issues — if at all — had I known that these communications could be disclosed to the California Attorney General's Office, which I understand has taken an opposing public position on these very same issues," the executive said.

Ross Eisenberg, vice president of ACC's plastics division, also told the court in an affidavit that fear of more subpoenas has caused the association to scale back lobbying.

"ACC refrained from having staff, including its president and chief executive officer, advocate on these Green Guide issues before the FTC," he said.

Eisenberg said ACC was concerned Bonta would have access to ACC's lobbying strategy with the documents he seeks. The group has seen less member participation in its policy advocacy as a result, he said.

"ACC is fearful that that California Attorney General Rob Bonta will single out ACC because it has expressed viewpoints contrary to those of his office," he said.

But Bonta disputed ACC's claims of retaliation.

In his filing, he said his investigation began more than a year before ACC submitted its comments to the FTC, and he said the chemicals association has not shown that his office is "motivated by a retaliatory intent."

Instead, he said the subpoena is part of a legitimate examination of industry activities.

"The subpoena was issued in the course of an authorized investigation for which there is a legitimate basis — potential deception by the plastics industry," Bonta said.

He said the investigation was publicly announced in April 2022, the same day that ACC was served with a letter telling it to preserve materials. He noted that was eight months before FTC initiated its Green Guides review.

ACC has been very public about the polling information, Bonta said.

"[The office] issued the subpoena to ACC in the course of an ongoing lawful investigation, seeking information regarding a study that ACC sponsored and published on its website, and chose to reference in a public comment letter," Bonta said.

Bonta also argued that it's not necessary for ACC staff and its companies to limit their communications, and if they choose to do so, that's their choice.

"There is no basis for ACC or its members to feel that they cannot continue to engage in lawful activities, and to communicate freely around those activities," Bonta said. "Indeed, the study remains on the ACC website. To the extent ACC and its members choose to limit their communications or activities going forward because of the subpoena, that is their prerogative, but the subpoena does not require it."