Weighing a recycling ‘fraud' claim from group that sees ‘case for legal action'

One way to read a new report alleging the plastics industry has oversold the potential of recycling is to see the detailed document as a primer for lawsuits.

The Feb. 15 report from the Center for Climate Integrity runs through industry initiatives dating back decades, which it says show that plastics companies promoted recycling despite doubts that it would ever be technologically or economically viable at scale.

It's not a new argument. It echoes efforts like PBS Frontline's "Plastic Wars" documentary in 2020.

But the level of detail in the CCI report, "The Fraud of Plastics Recycling," is new. And the focus on providing evidence for lawsuits is noteworthy.

CCI says its report "makes the case for legal action," arguing that overhyping recycling as a solution was a fraud because it "effectively protected and expanded plastic markets, while stalling legislative or regulatory action."

What is the difference between fraud and a deep disagreement on policy? That's something that would take a long trial to sort out.

CCI of course argues for fraud, pointing to internal industry documents stretching back decades.

"Big Oil and the plastics industry's decadeslong campaign to deceive the public about plastic recycling has likely violated laws designed to protect consumers and the public from corporate misconduct and pollution," said Alyssa Johl, CCI's vice president of legal and general counsel, in a statement. "Attorneys general and other officials should carefully consider the evidence that these companies defrauded the public and take appropriate action to hold them accountable."

Some lawsuits are happening, and that makes this report particularly interesting.

California Attorney General Rob Bonta made noise when he opened an investigation along CCI's lines in 2022, and New York Attorney General Letitia James filed a lawsuit last year against PepsiCo Inc., saying the company needs to do more to control plastic waste from its products.

A story Plastics News did in 2022 identified similar legal trends globally. As well, the New York University School of Law has launched a plastics litigation tracker following more than 50 lawsuits, and other reports have looked at the financial risks to publicly owned plastics companies from lawsuits and regulations and urged them to be more forthcoming.

An article on the report in The Guardian quoted former Maryland Attorney General Brian Frosh as saying the report includes the kind of evidence that normally emerges during discovery. Based on the CCI work, he said he would "feel comfortable pressing for an investigation and a lawsuit."

CCI expects more lawsuits. In a follow-up statement, Johl said she sees legal actions coming under a range of theories, brought by different levels of governments, and directed at companies, trade groups and others.

"Lawsuits could be brought by attorneys general and city and county attorneys based on claims for public nuisance, consumer fraud and racketeering, among others, given the industry's decadeslong coordination to mislead consumers and policymakers," she said.

The immediate responses from industry groups didn't really address the legal questions, focusing instead on claims around recycling and highlighting ongoing industry investment. They said CCI mischaracterized the industry and the state of recycling technologies.

"Business as usual won't fix the problem, but in the U.S., [European Union] and around the world, investments in advanced recycling can be a game-changer to better manage our vital plastic resources," said Ross Eisenberg, president of America's Plastic Makers, a unit of the American Chemistry Council, in a statement.

Eisenberg, who pointed to a website tracking industry progress, said that "to improve how plastics are made and remade, we need an all-the-above approach that combines innovation, investments and good policy."

Similarly, the head of the Plastics Industry Association, Matt Seaholm, called CCI an "activist, anti-recycling organization" and said the report disregards "incredible investments" in recycling technology. He pointed to his group's Recycling Is Real campaign.

The track record of plastics recycling is very mixed. After several decades of effort in the U.S., the best that's been achieved is about 30 percent for PET and high density polyethylene bottles. In Europe, the recycling rate for PET bottles is 50-60 percent.

And for flexible packaging or other types of plastic packaging in the U.S., the rates are mostly single digits.

None of that is particularly good for a country with our expertise and resources.

At PN, we know there's a lot of work being done to try to change those recycling problems. We write about it. But will it be successful enough to make a difference for the average person and what goes into our recycling bins? Honestly, I would say the jury is still out on that.

And, more to CCI's report, does it amount to fraud to talk about recycling's potential, given the history, or is it instead a disagreement about how to advocate around complex policy choices?

It's not a question I'm going to try to answer in this column, but if CCI is on target, then it's a debate we'll see more juries trying to get to the bottom of.