Why “Big Plastic” Is Taking ChicoBag Reusable Bags To Court

Small reusable bag company ChicoBag is under fire from three of the country’s largest plastic bag manufacturers for “false and/or misleading description of fact in interstate commercial advertising”, according to the complaint filed jointly by Hilex Poly, Superbag Operating Ltd. and Advance Polybag.

Billion Dollar Plastic is asking ChicoBag to correct the disputed online content and pay damages of triple the profits from a “misleading promotion” found at 14 Carrot Whole Foods in Lexington, South Carolina.

Is this a frivolous lawsuit aimed at subduing an outspoken environmental protagonist (ChicoBag CEO Andy Keller) and defaming his company, or an anti-greenwashing crusade to bring fairer practices into the marketplace?

Marketplace Mashup

Plastic bag manufacturers are facing attacks from all directions. Twenty-one communities have taken action to ban single-use plastic bags, while state legislators in California and Oregon are working towards statewide bans. Some governments have already banned plastic bags completely (Uganda, Bangladesh), and Rwanda is limiting production to bags no more than 100 microns thick. Ireland, China, Kenya, and Australia have levied a tax on the single-use shopping bags, and more countries are poised to follow.

A “Bag the Ban” campaign addresses this growing environmental, social and political movement, but as more city, state, and retailer ordinances are banning their product, this whimper from plastic bag manufacturers comes as no surprise. Why target Andy Keller and ChicoBag?

Plastic’s Ungainly Offspring: The Bag Monster

Disgusted by the plastic grocery bags dominating his local landfill, Andy Keller embarked upon a mission to replace single-use plastic bags (in circulation since the 1950s) with portable, durable, reusable bags. Since ChicoBag brand reusable bags came to market in 2004, the plastic bag industry has had competition. ChicoBag’s clever, compact designs and awareness campaigns like the Bag Monster (shown below) have stirred up the satchel sector.

The Case

Plaintiffs–Hilex Poly, Superbag Operating Ltd. and Advance Polybag–point to ChicoBag’s “Learn the Facts” page and argue that certain statements are inadequately cited and/or false.

The Plaintiffs attempted to address their concerns out of the courtroom late last year, but could not resolve their issues, explains Phil Rozenski, Director of Sustainability and Marketing for Hilex Poly to Earth and Industry.

“It’s important to understand that we are competitors,” Mr. Rozenski says. “All people within our marketplace need to practice fair marketing–this is something that impacts everybody in the marketplace.”

The lawsuit is making its way through the US Circuit Court in South Carolina, a state that does not provide anti-bullying protection (and is home to Hilex Poly HQ). Statutes like California’s SLAPP (Strategic Lawsuits Against Public Participation) are in place to protect First Amendment rights and frequently contain claims for libel, slander, malicious prosecution, and defamation.

The Plaintiffs have taken specific issue with the following statements:

* On its website, ChicoBag states that “A reusable bag needs only to be used eleven times to have a lower environmental impact than using eleven disposable bags.”; “Only one percent of plastic bags are recycled.” But Big Plastic says that the EPA article cited by ChicoBag doesn’t make this statement or provide any evidence that such a claim can be substantiated. Note: The EPA published a more recent statistic of 11.8%, to which Andy Keller responded, “If we’re talking about 1 percent, 5 percent, 12 percent – that’s still anemic. That’s my point.”

* According to ChicoBag, “Somewhere between 500 billion to one trillion plastic bags are consumed worldwide each year.” The plaintiffs say that the National Geographic article cited by ChicoBag “does not make this statement, refer to number of bags used worldwide each year, or provide any evidence that such a claim can be substantiated”. Note: The National Geographic article refers to the website Reuseit.com’s “Facts About the Plastic Bag Pandemic”, which also fails to properly cite the statistic.

* ChicoBag’s website states, “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 thousands of pounds of our discarded trash, mostly plastics.” Again, the plaintiffs argue that the National Geographic article cited by ChicoBag does not make this statement and take issue with the “implication” of a “landfill comprised of ‘mostly plastics’ ” Note: Mr. Keller may have done better to link to global research by 5 Gyres.

* “Each year hundreds of thousands of sea birds and marine life die from ingesting plastics mistaken for food.” ChicoBag credited this statement to the LA Times. The plaintiffs say this source never provided any evidence to substantiate its claim, and the implication of this statement, that ” ‘ingestible plastics’ are comprised of mostly plastic bags […] is false, misleading”. Note: A study of 38 green turtles found that 61 percent had ingested some form of marine debris including plastic bags, cloth, and rope.

Rozensky also says that a few of ChicoBag’s cited documents must have been altered or fabricated. One attachment leads to PDF documents that “clearly show” they were taken from the Internet Archive’s Wayback Machine. And in another article, credited to a federal agency (presumably the EPA), “[Mr. Keller] added and changed their material and used their letterhead to make it look like an official document”.

These accusations of malicious and willful deception add a troubling depth to the case, but a lawsuit of this nature is not likely to save the industry from being phased out by provocative advertising and green trends and might be difficult to won. To be awarded damages of any kind, lawyers will have to prove that any degree of exaggeration on the part of ChicoBag was sufficient enough to change an (already environmentally conscious) consumer’s mind and shopping behavior.

“We think if people choose to use reusable bags, that’s fine. We have sold reusable bags in the past and we have the capacity to do that,” says Rozensky.

May we suggest increasing this “capacity”?

Article by Allison Leahy, appearing courtesy Earth & Industry.