Most public enforcement against alleged greenwashing has been at the federal level by agencies such as the Federal Trade Commission in the U.S., the Advertising Standards Authority in Great Britain, and the Australian Competition and Consumer Commission.

Now American states are getting into the act, with a recent lawsuit filed by California’s Attorney General Kamala D. Harris involving claims of recyclable, compostable and biodegradable plastic bottles.

The complaint (Cal-ENSO_Complaint), brought on behalf of the people of California, accuses ENSO Plastics (ENSO), Balance Water Company (Balance) , and Aquamantra of making false, deceptive, and misleading claims that plastic bottles which include a particular resin made by ENSO will biodegrade or decompose in a landfill or other environment.

Among the marketing statements by ENSO alleged to be false or misleading and/or unsubstantiated are:

ENSO plastic bottles are “truly biodegradable”

“ENSO bottles biodegrade through natural microbial digestion in both aerobic (compost) and anaerobic (landfill) environments”

“ENSO bottles are recyclable with traditional PET [plastic]”

“Our scientific data supports that ENSO bottles will not contaminate PET recycle streams as the material used does not impact the PET polymer in any way”

According to the complaint, statements on Balance’s bottles such as ”100% biodegradable recyclable” and will “break down in a typical landfill or compost environment in less than 5 years” are false or misleading and unsubstantiated.

The complaint cites similar statements by Aquamantra, including “our bottles are made of 100% biodegradable & recyclable plastic” and the bottles “can be composted and will break down in around 240 days.”

The central cause of action in the suit is a recent California state law that banned the use of the terms ”biodegradable,” “degradable,” or “decompostable” in any form in connection with plastic food or beverage containers.

Enacted in 2008, AB 1972, requires that food or beverage containers labeled with the term “compostable” or “marine degradable” must meet certain statutory standards. 

This is the first lawsuit to enforce the new law, which the California legislature said is intended to ensure that:

environmental marketing claims, including claims of biodegradation, do not lead to an increase in environmental harm associated with plastic bag and plastic container litter by providing consumers with a false belief that certain bags and containers are less harmful to the environment if littered.

Along with private consumer actions and public enforcement by federal government agencies, legal action by the states adds another level of enforcement against greenwashers.

In previous posts here and here I wrote about a lawsuit in which plastic bag manufacturers Hilex Poly Company (Hilex), Superbag, and API Enterprises took issue with certain statements made by ChicoBag, the popular reusable bag maker.

The accusations could be called reverse greenwashing, as they involved allegedly false or misleading statements not about environmental benefits, but about the negative environmental impact of certain products. 

Specifically, the plastic bag makers alleged that ChicoBag made false or deceptive claims about the consumption, recycling, and negative environmental impact of plastic bags and has falsely indicated that the claims are substantiated.

ChicoBag countered that the statements at issue were made by third party sources such as the Environmental Protection Agency, National Geographic, and the Los Angeles Times, and simply repeated by ChicoBag, with attribution, on its web site.

In what ChicoBag and some in the eco-blogosphere are calling victory, Superbag and API agreed to dismiss the case (Superbag-API-Dismissal), and the remaining plaintiff, Hilex, settled with ChicoBag (HilexPoly-Dismissal).

According to ChicoBag’s press release, Hilex has agreed to properly cite recycling statistics and undertake certain measures to reduce windblown litter, and both parties will be more careful and even-handed in their marketing statements. 

Some of the settlement terms are:

Both parties will provide citations and dates for all facts and statistics on any web page or advertising;

Hilex will include a statement on its products “Tie Bag in Knot Before Disposal” and statements on its web site about ways to prevent windblown litter;

ChicoBag will keep updates about some of the statements at issue in the suit up on its web site;

ChicoBag will not cite any archived EPA web sites; and

ChicoBag will inform visitors to its Learn the Facts web page that plastic retail carryout bags are only a subset of plastic bags in ocean debris reports.

ChicoBag’s President Andy Keller said the settlement marks two wins for the environment:  “First, Hilex Poly can no longer inflate plastic bag recycling numbers by including non-bag wrap and plastic film.  And they have also agreed to acknowledge that plastic bags can become windblown litter despite proper disposal and to better educate the public.”

A previous post discussed a recently-filed lawsuit in which plastic bag manufacturers Hilex Poly Company, Superbag, and API Enterprises took issue with certain statements made by ChicoBag, the popular reusable bag maker.

The accusations could be called reverse greenwashing, as they involve allegedly false or misleading statements not about environmental benefits, but about the negative environmental impact of plastic products.

ChicoBag recently responded, at least in the court of public opinion. 

In a press release entitled “Bag Wars:  Plastic Bag Giants Sue Reusable Bag Entrepreneur for Loss of Sales (Environmental Community Outraged),” ChicoBag addresses the plastic bag makers’ accusations head on and suggests the suit should be viewed as part of the plastics industry’s strategy of silencing the competition.

The crux of the plastic bag makers’ complaint (Hilex_Complaint) is that ChicoBag has made a number of false or deceptive claims about the consumption, recycling, and negative environmental impact of plastic bags and has falsely indicated that the claims are substantiated.

However, according to the press release, the statements at issue were made by third party sources such as the Environmental Protection Agency, National Geographic, and the Los Angeles Times, and simply repeated by ChicoBag, with attribution, on its web site.

Moreover, Andy Keller, the inventor of ChicoBag and the company’s president, told me that the plastic bag makers’ complaint actually altered the wording of some of the statements.

In particular, while some of the statements actually relate to the environmental impact of plastic products generally, the plastic bag makers inserted the word “bags” into the statements with the result that the complaint falsely presents them as claims about plastic bags.

The press release also notes that litigation is a favored tactic by plastic bag manufacturers and their coalitions and associations such as the Save the Plastic Bag Coalition, which has filed suits against the communities of Marin County, Palo Alto, Manhattan Beach, and Los Angeles County.

According to Keller, “Plastic bag manufacturers and their ‘non-profit’ associations, along with their trade association, the American Chemistry Council, have spent millions of dollars trying to persuade voters and elected officials to vote against single-use bag legislation.”

With respect to the current lawsuit, Keller doesn’t think it is really about the facts.  Instead, he said, “I believe it is simply a way for the industry to squash the competition and scare all of us into silence.”

Greenwashing has come to mean making false or deceptive representations about environmentally friendly aspects of products, services or practices. 

The vast majority of greenwashing legal actions target product or service providers touting their wares in such a way that misleads consumers about the environmental benefits of those goods or services by, for example, making unsubstantiated claims about better energy efficiency or lower environmental impact.

However, in a twist that might be called reverse greenwashing, a new lawsuit focuses on alleged false or deceptive claims about the negative environmental impact of competitors’ products.

Specifically, plastic bag makers Hilex Poly Company, Superbag, and API Enterprises accuse ChicoBag, which markets its reusable bags as eco-friendly alternatives to single use plastic bags, of making false, misleading and unsubstantiated claims about the consumption, recycling, and environmental impact of plastic bags.

According to the second amended complaint (Hilex_Complaint), filed in federal court in Columbia, South Carolina, ChicoBag has made several false or deceptive claims in its advertising and promotion, and has falsely indicated that the claims are substantiated.  The disputed claims include:

the statement that only one percent of plastic bags are recycled;

the statement that “somewhere between 500 billion and a trillion plastic bags are consumed worldwide each year”

the statements that “the world’s largest landfill can be found floating between Hawaii and San Francisco” and “this ‘landfill’ is estimated to be twice the size of Texas” and the “landfill” is comprised of “mostly plastic bags”;

the statements that “[e]ach year hundreds of thousands of sea birds and marine life die from ingestable [sic] plastics mistaken for food” and that such plastics are comprised mostly of plastic bags.

The plaintiffs also allege that some of ChicoBag’s assertions about its own reusable bags are false or misleading, such as the statement that its products are superior to plastic bags and that a reusable bag needs to be used only eleven times to have a lower environmental impact than using eleven disposable bags.

The complaint asserts one federal cause of action for false advertising under the Lanham Act and another for violations of the South Carolina Unfair Trade Practices Act.

It seems likely that some of the disputed statements will be deemed permissible advertising puffery. 

However, green consumers deserve accurate and substantiated information not only in connection with the environmental benefits of products they may want to purchase, but also the reverse – with respect to the environmental detriment of products they may wish to avoid.