California Attorney General subpoena – latest development in legal efforts targeting plastics

On April 28, 2022, California Attorney General Rob Bonta issued a subpoena to one of the world’s largest publicly traded energy providers and chemical manufacturers, seeking information arising from what he called “the fossil fuel industry’s decades-long campaign of deception” regarding the efficacy of recycling as a means to reduce plastic pollution.

His colorful press commentary that day referenced a larger investigation into “the fossil fuel and petrochemical industries for their role in causing and exacerbating the global plastics pollution crisis.”

This move is the latest in a series of regulatory, legislative, and litigation developments focusing on the plastics supply chain, which could impact participants from plastic manufacturers to plastic packaging users and product companies.

The California AG’s investigation

Though the AG’s Office has released few substantive details about the recent subpoena specifically, the broader investigation outlined by the Attorney General illustrates the increasing scrutiny of the plastics manufacturing industry, despite the near-ubiquitous demand for plastic packaging and products throughout the consumer world.

The AG’s investigation outlines a three-part approach:

1) target companies that he alleges have “caused and exacerbated the global plastics pollution crisis”

2) investigate these companies’ role in what he describes as “perpetuating myths around recycling and the extent to which this deception is still ongoing” and

3) “[d]etermine if these actions violate the law.”

In issuing the subpoena, Attorney General Bonta accused the plastics industry of “engag[ing] in an aggressive campaign to deceive the public, perpetuating a myth that recycling can solve the plastics crisis,” while “[t]he vast majority of plastic cannot be recycled, and the recycling rate has never surpassed 9%.” The Attorney General claims that his investigation is based on the alleged belief that, beginning in the 1980s, the plastics industry began a marketing and advertising campaign to “convince the public that we could recycle our way out of the plastic waste problem” in response to “state legislatures and local governments . . . considering bills restricting or banning plastic products.”

California’s investigation, while focused on alleged trade practice and consumer protection concerns, also suggests greater environmental and legal scrutiny. Notably, the AG explicitly referred to heightened concern regarding microplastics and their potential for human toxicity, an emerging issue drawing environmental, regulatory, and legal attention.

While California’s investigation may increase attention on recycling advertising, it may ultimately spur more regulatory and legal focus on environmental and human health questions involving plastics.

Other actions targeting plastics

The intensified regulatory focus on plastics has been gaining traction in recent years.  Several states have enacted bans or significant restrictions on single-use plastics.  For example, California, Connecticut, Delaware, Maine, New York, Oregon, Vermont, and Washington have all banned single-use plastic bags and auxiliary containers in one form or another. And state legislation has targeted recycling-related claims appearing on plastic products and packaging. Last year, California passed SB 343, a bill prohibiting the use of symbols or other claims suggesting recyclability on products or packaging that do not meet state recyclability criteria and setting substantiation requirements for such claims. Other states have enacted less involved laws prohibiting false or misleading recycling claims.

There has also been a push for increased regulation of plastics at the federal level. On May 3, 2022, the US Environmental Protection Agency settled a years-long dispute with the Center for Biological Diversity over regulation of polyvinyl chloride (PVC). The Center petitioned EPA to regulate PVC as a hazardous waste under the Resource Conservation and Recovery Act (RCRA) and subsequently sued the agency for unreasonably delaying action on the petition.

The parties’ proposed consent decree – which is still subject to court approval and public notice and comment – would require EPA to sign a tentative decision on the petition no later than January 20, 2023, and a final decision by April 12, 2024. Should EPA proceed with designating PVC as a hazardous waste under RCRA, a robust regulatory framework would necessarily follow, prescribing rules for its treatment, storage, and disposal, with associated permitting, registrations, recordkeeping, and other potential requirements.

Private litigation is also on the rise. Lawsuits have attempted to blame prominent product-based companies for plastic pollution generally and for their use of required recycling symbology and related claims on plastic products and packaging.

What to expect

As California’s investigation develops, the focus on plastics both in California and nationwide may lead to additional plastics production and recycling restrictions and requirements. There is also a risk of both government and private party litigation if and when additional findings shed further light on plastics’ environmental impacts nationwide. DLA Piper’s Plastics team continues to monitor and engage with this continuously evolving legal landscape and is prepared to assist its clients in navigating the complex and novel issues that may arise. To learn more, contact any of the authors.