A lawsuit over criticisms of plastic bags has ended in a settlement as the war escalates over how much plastic carryout bags will be used in the future.
Both sides are claiming victory in the case involving Hilex Poly of South Carolina and reusable bag manufacturer ChicoBag of Chico, Calif. Hilex Poly challenged statements the smaller company made on its website and in educational materials, including that "a reusable bag needs only to be used eleven times to have a lower environmental impact than using eleven disposable bags" and that "somewhere between 500 billion and a trillion plastic bags are consumed worldwide each year."
Both companies agreed to concessions in the settlement, including that they will use the most recent U.S. EPA data on how much plastic bags and other plastic products are recycled. They also agreed to show sources and dates for all statistics cited on Web pages or advertising.
In addition, ChicoBag's insurance company will pay an undisclosed financial settlement. Hilex Poly will print a message on its bags stating, "tie bag in knot before disposal," and will put statements on its website about preventing windblown litter of plastic bags.
The case, filed in U.S. District Court of the District of South Carolina, comes as the plastic bag industry battles those pushing only reusable bags, said Sean Hecht, executive director of UCLA's Environmental Law Center. In California, multiple cities and counties have banned the use of plastic bags by merchants (Greenwire, Jan. 28).
Plastic bag makers want to stop any additional curbs on the bags, Hecht said, and part of that is winning support from consumers. The case originally involved two other large bag manufacturers, Superbag Operating Ltd. and Advance Polybag Inc.; both have withdrawn from the case. Those companies last week hailed the settlement secured by Hilex Poly.
"Really it's about trying to shape public perception," Hecht said, "and perhaps have the public perception shape the direction legislation goes in California and municipalities here."
Among other restrictions in the settlement, ChicoBag no longer can cite archived EPA data as the source of a 2005 statistic that 1 percent of plastic bags are recycled. The company also agreed to state on its website that carryout plastic bags are only a subset of the plastic bags seen in ocean debris.
"This settlement ensures that facts are accurate," Mark Daniels, Hilex Poly vice president of sustainability, said in a statement. "We welcome a vigorous and honest debate about the use of plastic carryout bags. While all parties are entitled to their own opinions, Hilex Poly believes that everyone should be careful to be accurate in the facts presented."
Hilex Poly will have to be more clear about a figure it uses, that 11.8 percent of bags are recycled, said Andy Keller, president and founder of ChicoBag. That number, Keller said, includes not just the bags that consumers tote groceries home in but also plastic that covers items delivered to stores and wrap used on shipping pallets.
"So that's a huge win," Keller said. "The settlement of this lawsuit is ultimately a huge win for the environment. We're getting down to the real number what is the number of plastic bags that's recycled."
Hilex Poly, one of the country's biggest makers of plastic bags, sued ChicoBag earlier this year.
ChicoBag was using a figure on plastic bag recycling that EPA "had removed and retracted," said Phil Rozenski, director of marketing and sustainability at Hilex Poly. Keller had recreated the EPA site, Rozenski said, "so it was a counterfeit website."
Advance Polybag and Superbag Operating in their joint statement on the lawsuit settlement echoed that language, saying that "among other dishonest practices, ChicoBag created an imitation EPA website to share false information."
The 1 percent plastic bag recycling figure that ChicoBag used came from a 2005 EPA municipal solid waste report, Keller said. That was the most recent data available that separated single-use carryout bags from other types of plastic that are included in the 11.8 percent recycling number.
After receiving a cease-and-desist letter from Hilex Poly before the lawsuit, Keller removed the 1 percent figure and other controversial material.
Keller said that he asked the plastic bag companies for the accurate number for carryout bags alone but that the businesses did not provide the figure. The information came from an archived EPA website, he said. Before the suit, Keller said, he was not aware that EPA had since removed the information.
He rejected the claim that he made a counterfeit EPA site. The settlement states that ChicoBag "will not cite to any archived EPA websites."
"They're freaking out. They're trying to get control and make themselves look good," Keller said of the counterfeit claim by the plastic bag companies.
Hilex Poly also accused Keller of creating a false National Oceanic and Atmospheric Administration Web page on the plastic debris in the Pacific Ocean, sometimes called the Great Pacific Garbage Patch. Keller was using that in an education package that it provided to schools, but "his document was not the actual NOAA document," Rozenski said.
"Not only was he falsifying NOAA data, he was putting it into schools in order to indoctrinate children," Rozenski said.
Keller said he used accurate NOAA information but could not make a PDF of the NOAA Web page, so he copied the information into another document. Every page of the document said that it was taken from NOAA's website.
"They're making that we forged government documents," Keller said.
Hilex Poly also has made adjustments as a result of the settlement. The company after the legal agreement took down its website, thetruthaboutplasticbags.com. Keller said that is because the company could not back up statements it made on the site.
The site listed a number of what it called plastic bag myths alongside refuting information, according to a cached version of the page provided by Keller. They included the "myth" that "most US cities and States are looking to ban or tax plastic bags," followed by "as of 2010 the only large city to ban plastic bags is San Francisco. Only Washington DC has elected to tax shoppers that receive plastic bags."
The company removed the site, Rozenski said, because it would have needed to review all the information to comply with the settlement terms and because the page was redundant with another site, bagtheban.com. He said Hilex Poly had not worked on thetruthaboutplasticbags.com in a year.
Keller said that other agreements Hilex Poly made -- to print "tie bag in knot before disposal," on bags and to add website statements about preventing windblown litter -- will help tear down the industry's claims that plastic bag litter is due to people and not the product. That argument ignores that plastic bags become windblown because they are lightweight, he said.
Rozenski of Hilex Poly disagreed.
"We've always agreed that anything that's littered is unacceptable," Rozenski said. "It seems to me a bit of a red herring. He's trying to create something."
Rozenski said that Hilex Poly also has always used the 11.8 percent recycling number to refer to bags, wraps and other sacks made from polyethylene. There may have been occasions, he said, where someone inadvertently used the 11.8 percent recycling number as shorthand to refer to "plastic bags."
The lawsuit showed that Hilex Poly is willing to go to court to stop statements it views as harmful, Hecht said. He questioned whether Hilex Poly strategically picked the court location.
The case was filed in South Carolina, which does not have rules allowing a judge to decide if a case was filed to suppress legal speech, also known as Strategic Lawsuit Against Public Participation, or SLAPP, Hecht said. California, where ChicoBag is based, has anti-SLAPP laws. If a case is ruled to fall under SLAPP, Hecht said, the plaintiff has to pay defense attorneys' fees.
"I have to believe that the motivation behind this was that they feel a threat from the durable bag industry," Hecht said of Hilex Poly.
Hilex Poly's Rozenski argued that "this case wasn't about the broader debate; it was about competition in the marketplace. It's against the law to use false and misleading material in the marketplace."
However, Rozenski added, "we do think it's something the public needs to look at: Where are these citations [on recycling and other information] from?"
ChicoBag owner Keller believes he was targeted for multiple reasons. Keller advocates for a reduction in plastic bag waste and sometimes turns into the "Bag Monster," donning 500 plastic bags to represent the number each American uses annually. He runs the blog www.bagmonster.com.
"While the Bag Monster is not specifically mentioned in the lawsuit, its success may have made Keller a target of the industry," ChicoBag said in a statement.
Correction: This story was changed to clarify that ChicoBag's insurance company is paying the settlement, ChicoBag agreed not to cite an archived EPA statistic on plastic bags recycling and to add additional attribution to a claim that ChicoBag recreated an EPA website.