by Edward Humes
By 2011, sponsored brigades in fourteen countries were sending billions of pieces of trash to TerraCycle—a vast, green supply chain of upcyclable garbage—and in return, the brigades got up to 2 cents per piece for their school or charity. It’s a business model that has made TerraCycle one of the fastest-growing green businesses on the planet—and it might never have happened without a big lawsuit to propel a worm-poop farmer into the big time.
LIKE THE CEO of TerraCycle, Andy Keller can laugh these days about his legal battle with a more powerful rival. Now he can cheerfully suggest that, in the end, his small company benefited from being targeted by what he thinks of as “Big Plastic”—even though the plastic companies who sued him also claim victory.
“They can say that,” Keller says, “but I think it’s clear this lawsuit was the biggest mistake they ever made. It put ChicoBag on the map. It gave me a national, maybe a global stage, to talk about these issues, to talk about kicking the disposable habit, being less wasteful, protecting the environment—and how each of us can do our part. And it ended up costing us nothing. We didn’t have to do anything we wouldn’t have done anyway.”
But at the time of the filing, Keller wasn’t laughing. The suit—with its accusations that ChicoBag had engineered “a continuous and systematic campaign of false advertising and unfair competition”—had the potential to ruin his still fledgling green business.
The suit was filed by a trio of plastic bag makers—Hilex Poly Company of Hartsville, South Carolina (ten plants in seven states), Superbag Operating, Ltd., of Houston, and Advance Polybag, Inc., of Sugar Land, Texas. Together they are among the largest plastic grocery bag makers in the country. All three are members of the Progressive Bag Affiliates of the American Chemistry Council (an elite group; fellow members were: The Dow Chemical Company, ExxonMobil Corporation, Total Petrochemicals USA, and Unistar Plastics). Hilex Poly was also heavily invested in the Save the Plastic Bag Coalition that sued a number of cities for adopting plastic bag bans.
The three plastic companies asserted that ChicoBag used its “Learn the Facts” company Web page to cause the plastic bag makers “irreparable harm” through deceptive trade practices and false claims. There were five statements the plastic makers took issue with that had been published on ChicoBag’s website:
• A reusable bag needs only to be used eleven times to have a lower environmental impact than using eleven disposable bags.
• Only 1 percent of plastic bags is recycled.
• Somewhere between 500 billion and 1 trillion plastic bags are consumed worldwide each year.
• The world’s largest landfill can be found floating between Hawaii and San Francisco. Wind and sea currents carry marine debris from all over the world to what is now known as the Great Pacific Garbage Patch. This “landfill” is estimated to be twice the size of Texas and contain thousands of pounds of our discarded trash, mostly plastics.
• Each year hundreds of thousands of seabirds and marine life die from ingestible plastics mistaken for food.
The plastic companies did not explain how such general claims published on a reusable bag company’s website could affect their commercial disposable bag business. The vast majority of consumers had never heard of Hilex Poly or the other companies. Proving the statements false would not win the case for the plastic makers; they would also have to show that these statements caused specific injuries—a formidable legal hurdle. They would have to prove, for instance, that executives at a major supermarket chain perused ChicoBag’s website and then decided to stop buying plastic bags from one of the three defendants. That’s the sort of specific damage that has to be proven under the Lanham Act, the same legal bludgeon Miracle-Gro used against TerraCycle—you don’t win just by alleging some vague reputational injury. And that specific damage would have to be linked directly to ChicoBag, as opposed to the hundreds of other websites and major media outlets that had similar, and often more damning, statements about plastic bags causing environmental harm. What this suit really was about, one legal commentator opined at the time, was targeting a single outspoken critic of plastic bags in hopes of shutting up other critics who might not want to be next on the firing line. ChicoBag would be an example, an object lesson—a deterrent.10
The suit was filed in South Carolina, which has nothing like California’s law against SLAPP suits (Strategic Lawsuit Against Public Participation). In his home state Keller could challenge the validity of such a lawsuit as a veiled tactic to censor, intimidate and silence a critic by saddling ChicoBag with backbreaking legal bills. In South Carolina, that wasn’t an option. The two sides would have to fight the case on its merits.
It’s common for websites to report statistics, even controversial and extravagant ones, without much (or any) sourcing. ChicoBag, however, had annotated its “Learn the Facts” page and provided the sources for five statements challenged by the plastic bag makers, which were: the EPA, National Geographic and the Los Angeles Times. The ChicoBag website quoted these sources correctly—that wasn’t in dispute. But if the claims were false and they actually harmed the plastic bag business, even repeating them accurately could still constitute a violation of the Lanham Act.
The plastic bag companies first let their displeasure with ChicoBag be known by sending a cease and desist letter to Keller, a common prelude to suing that gives alleged miscreants a chance to clean up their acts before being taken to court. And Keller responded to the letter by taking those five statements off his site until he could investigate and, if there were errors, correct them. He adds, “Then they sued me anyway.”
But Keller still conducted his investigation—and decided it was the plastic companies, not ChicoBag, who had it wrong.
For the first statement targeted in the lawsuit, Keller discovered the EPA’s website no longer displayed the information he had relied on about shopping with a reusable bag eleven times (although it’s still widely quoted on the Web). That didn’t make it false, just inaccessible. So he turned to a life-cycle report on supermarket bags that Hilex Poly itself had cited. That study confirmed Keller’s point: that a reusable grocery bag made of nonwoven polypropylene plastic would have to be used at least eleven times to have a lower carbon footprint than using disposable single-use grocery bags. (There were other comparisons in the study, too: Using a paper bag three times would do the trick, while it would take 131 trips to the market with a cotton bag to have a lower carbon footprint—which meant the material used for a reusable bag was critical. The cotton footprint sounds very high, but given the average American’s five-hundred-bag annual habit, it would still be an improvement given the long life of a well-made cotton bag.) In preparing for his legal defense, Keller hired a scientist who had worked extensively for Hilex Poly and asked him to perform a life-cycle analysis that found ChicoBag’s line of products made out of recycled PET plastic (basically old soda bottles) did even better. One of those bags had to be used only nine times to have a better environmental footprint than disposable bags.11
As for the second claim—that only 1 percent of plastic bags were recycled—there’s no question that the EPA reported this statistic in its 2005 Municipal Solid Waste Report. The plastic bag makers admitted as much, but complained that the information was so dated as to be misleading. But 2005 is the last year such a statistic on the recycling of plastic bags is even available from the EPA. After that year—due to the plastic industry itself—the statistics for bags were combined with plastic wraps and films. Keller repeatedly requested separate plastic bag stats from Hilex Poly, but none ever came. Combining the recycling stats from different kinds of plastic is what’s really misleading, Keller argues. But even using those more recent combined numbers, the recycling rate for plastic films, bags and wraps is still less than 10 percent in more recent EPA data. “Anemic,” Keller calls it. “Certainly nothing to brag about.”
The third challenged statistic—that the worldwide consumption of disposable plastic bags of all types is 500 billion to
1 trillion—may not be accurate, Keller realized after investigating further. But that’s only because the number is almost certainly higher. Keller compiled plastic bag consumption data for the European Union, China, Australia, Japan, Canada, India and the U.S., and painstakingly detailed on his website the sources and calculations that led to the 1 trillion annual plastic bag consumption estimate. That figure does not include areas for which he lacked good data: South America, Africa, Central America, the Middle East, Eastern Europe and a sizable portion of Asia—which means, Keller says, that the trillion estimate is in no way unfairly criticizing the plastic industry. It’s giving them a free ride.
Keller’s description of the Pacific Garbage Patch as a giant floating landfill was based on reporting by the Los Angeles Times (which used the phrase “world’s largest dump” in its Pulitzer Prize–winning “Altered Oceans” series of reports12). This is similar to a spate of news and blog reports on the gyre that likened the plastic pollution to a floating continent or a mass of debris. Using the term “landfill” or “dump” is more metaphorical than literal, Keller says, and there are definitely more precise ways to describe it. But his description, as he sees it, only underestimates the challenge posed by the huge area of ocean where plastic pollution is concentrated. It can lead people to envision a more solid, visible collection of plastic waste—and therefore an easier one to clean up—rather than the diffuse soup of small confetti-like particles that’s really out there, and that he witnessed firsthand while accompanying a research voyage with the 5 Gyres Institute.
Finally there was the fifth challenged statement, which stems from one of the most oft-repeated but most thinly sourced of statistics on marine pollution—the death of hundreds of thousands of seabirds and marine life from marine plastic debris. Many publications and organizations have repeated this information before and since Keller wrote his “Just the Facts” Web page. Keller’s version of the statement is sufficiently general and conservative enough (many websites claim it’s millions of seabirds killed every year, not hundreds of thousands) to be supported by the scant number of scientific reports that tried to quantify the problem, according to the National Oceanic and Atmospheric Administration.13
Convinced that his original information, while it could be improved, was not false and misleading, Keller expanded his plastic research. He created and published on his website an extensive timeline on the many lawsuits and lobbying efforts by the plastic industry to preserve their disposable bag business and to undermine opponents, dating all the way back to the industry’s successful battle a half century ago to block a ban of plastic dry-cleaning bags that had been linked to child asphyxiations.
The lawsuit and Keller’s dogged response brought media attention and increased sales to ChicoBag. Fortune, Rolling Stone, the New York Times, the San Francisco Chronicle and other media outlets covered the case, and Keller relished the role of “little guy facing off the schoolyard bully.”
“I really think they were trying to make an example of me,” Keller later reflected. “The plastic bag is under attack all over the world, and after years of Big Plastic winning all its battles, people and communities finally began waking up to the fact that it’s crazy to make a product that gets thrown away after one use, that lasts for hundreds of years, that gets blown away and washed down rivers and into the ocean. And then here I come with Bag Monster, and I think it really got under their skin. It was the last straw for them.”
Keller pinned his legal defense on nine scientific experts on ocean plastic pollution, marine plastic ingestion, life cycles of plastic bags and the plastic bag industry. According to Keller, their reports showed that, if anything, ChicoBag’s page of facts about plastic bags had only underestimated the true potential for environmental harm and costs.
Before a trial could settle the issues, and before even the deposition stage of the lawsuit, in which Keller and the plastic bag executives would have to submit to hours of questioning, Hilex Poly decided to settle. The other two companies had already dropped out of the case.
The settlement imposed conditions on both sides. Keller agreed to revise his facts page in order to attribute statistics to current reports and data rather than any archived or outdated reports. He also agreed to use the newer plastic bag recycling figures that combine bags with wraps and film, as well as reporting that the last recycling figure reported strictly for plastic bags was 1 percent. Hilex Poly likewise agreed to stick with the most current and clearly sourced statistics, and to make clear the nature of the mixed statistic on bags, wraps and films. The company also agreed to put the statement “Tie Bag in Knot Before Disposal” on its bags, and to discuss on its website how this simple precaution when throwing away plastic bags can prevent windblown litter.
ChicoBag’s insurer agreed to make a cash payment to Hilex Poly, the amount of which was kept secret under the terms of the settlement.
Both sides claimed victory. Hilex Poly’s press release on the settlement was muted and factual, emphasizing that the settlement would ensure a fair and open debate on plastic bags in the future, calling it “a win for consumers.” Its wording carefully stopped short of stating that the allegation of false statements by ChicoBag had been proved; instead, a vice president of the company was quoted as saying, “The use of false and misleading statements is injurious to the marketplace, and this settlement ensures that facts are accurate.”14 But a press release from the other two plastic bag companies, Superbag and Advance Polybag, companies that dropped out of the case before it settled, bordered on the bizarre. Among other things, it accused ChicoBag of creating “an imitation EPA website to share false information,” something that was never alleged in the suit, much less admitted or proven.15 This, according to Keller, was the very definition of false and misleading statements.
His own press release portrayed the lawsuit as “frivolous” and the settlement as a big win for his company and the environment, particularly the bag maker’s agreement to depart from its historical stance that “Bags don’t litter, people do.” Instead, Hilex Poly acknowledged that bags can become windblown litter even when properly disposed of. Telling consumers to tie their bags in knots was a huge shift and concession, Keller says, as was Hilex Poly’s agreement not to mislead the public with combined statistics that could make plastic bag recycling rates look better than they really are.
“What started as a bullying tactic,” his press release said, “has morphed into two wins for the environment.”
WHETHER THEY are the crinkly white sacks at the local supermarket, the clear sandwich bags in kids’ lunch bags, the flimsy baglets that protect newspapers even on sunny days or the bags for the carrots and celery in the produce aisle, plastic bags are ubiquitous. Frozen ravioli, cotton balls, socks, potatoes, jelly beans, pinto beans—you could fill a book with the items that come to us encased in plastic bags. The average American touches plastic bags multiple times a day, hundreds of bags a year, many thousands in a lifetime. Even when, as their makers argue, disposable bags serve a second purpose at home—as a trash bag or a pooper-scooper or to wrap a school project in on a wet day—most still end up in a landfill. Others find their way into storm drains, rivers, oceans. They are mostly not recycled despite decades of efforts. Even their biodegradable counterparts rarely make it to a facility that can actually recycle them.16 Their environmental footprint and cost are greater than the simple expedient of a reusable bag. They are, as Andy Keller is quick to point out, a product with a useful life measured in hours and a waste life measured in centuries.
That said, plastic bags are a comparatively modest part of the waste stream. They are part of the marine pollution problem, but how much remains unclear. They take up room at landfills, but other packaging forms a bigger part of the 102-ton legacy. Why, then, are so many cities making bags a priority? Why is Andy Keller so passionate about it that he would put his company and livelihood at risk rather than abandon his efforts to undermine single-use plastic bags and persuade others
to give them up for good?
Because, Keller says, as a symbol, few parts of our waste stream and our disposable plastic economy are more potent and visible in our daily lives. And few parts of the 102-ton legacy are easier for an ordinary person to change.
Keller believes that the single-use plastic bag habit—his bag monster—“is the poster child for unnecessary waste.” Breaking the habit of being a bag monster, he says, is the first step in moving our homes, our families and our communities into less wasteful, more reusable habits and consumer behavior. First get rid of the bags, then move on to other disposables that we don’t really need. At ChicoBag, he ditched paper towels next. Each employee was given a cloth towel with a hook to hang it on. It gets washed as often as necessary.
Keller next bought everybody a thermal container for drinks and a reusable clamshell for salads and sandwiches for casual meals and takeout at restaurants that usually serve on plastic, paper, foam or other single-use diningware. Restaurants that were willing to serve the zero-waste way got ChicoBag employees’ business. Others that refused lost those customers, though the ChicoBag workers made it clear they’d happily return if the management reconsidered its position. When it dawned on restaurant owners that they were losing paying customers for no better reason than habit and old thinking, that it was no harder to serve food without wasting paper and plastic—and, in fact, it saved packaging costs—several changed their minds.
These kinds of incremental changes add up, Keller says, altering the dynamic of the consumer culture, because each one gets easier than the last. According to the ChicoBag founder, the way to start that particular snowball rolling is with the plastic bag. It’s harder to accomplish without the obvious, clear benefit of the Irish-style bag tax—the plastic industry has for the most part fought off that sort of clear-cut incentive in America, dulling the message that consumers can simply skip the bag and save money. The industry also has a strong counter-message: Banning bags will cost jobs, fees will hurt the economy and consumer spending, and they’ll spawn a new government bureaucracy. Just using the word “tax” is a potent weapon. Never mind that we’re already paying an invisible bag tax, Keller says, because they’re not really free—consumers pay for them in the form of higher food prices at the market, about $30 a year per person. It’s not as if retailers are going to pay $4 billion a year for bags and not pass on the cost to customers. The lost jobs and economic harm arguments were raised decades ago by the paper industry in hopes of staving off competition from plastic. Then, as now, it was an instance of an entrenched but aging business model—paper—losing its revenues to the upstart—plastic. The paper bag companies complained of lost jobs, but what they were really fighting was the shift of jobs (and profits) to the plastic newcomers. One person’s job killer is another’s progress. Now plastic bag makers are marshaling the same old arguments, this time fighting a shift from the disposable economy to a reusable one. They have even become champions of recycling, which they initially resisted, because it’s a way to keep consumption rates high for disposable things. “The myth of recycling,” says Keller, “is that it’s okay to consume all we want as long as it has that little recycling symbol on it. But that’s completely false, and just perpetuates our wasteful, disposable ways.”