The ground has shifted, in a bad way

Eric F. Greenberg Attorney-at-Law

August, 2018

If anyone asks you in the next few months what the big new legal trend affecting packaging is, I suggest you tell them it’s the “Worldwide Plastics Smackdown.” Say it like that and they’ll be certain to remember what you said. That kind of attention and vigilance on the packaging industry’s part could be necessary in years to come.

Plastic articles, from any single-use item to drinking straws, have rather quickly become the subject of a proliferation of adverse new laws and company policies.

Many people probably heard of Starbucks’ decision to stop using drinking straws, but that high-profile private action helped bring wider attention to a pattern that had already emerged in which governments and companies are moving away from plastics. A common motivation appears to be the problem of plastic ocean debris.

Bans on packaging materials or articles are virtually always misguided, simply because it is just about never true that a specific packaging material or structure is all bad, or so bad that the bad outweighs the good. This being real life, after all, materials and structures typically carry both advantages and disadvantages.

Bans are sort of the death penalty for a material or a product. Taxes and restrictions on materials or products are more like prison sentences, that is, part-way measures intended to reduce usage but stopping short of complete bans. But they can certainly hurt, too, and should only be imposed if the facts clearly justify such actions.

For decades, the debate over environmental issues and packaging has led to frustration for packaging makers and users, primarily because the public sees packaging after its useful life and thinks of it as waste, giving little if any thought to that useful life. Packagers know that consumer product packaging provides multiple benefits at once, including safety, efficiency, convenience, communication, marketing, and no doubt others. They also know that consciousness about environmental issues, and in some cases, legal strictures, have led packaging makers and converters to adopt enormous improvements in recyclability, recycled content, degradability, source reduction and safety of packaging. Far from being resistant to these pressures, the packaging industry overall has responded with dramatic changes and improvements.

Right now, though, single-use plastics appear to be a primary target of legislators in many different locations. Examples abound and are quickly gaining higher profile. Here are some:

• Seattle recently banned single-use plastic straws and utensils, except if needed for medical reasons. Recyclable straws for dine-in or takeout meals are OK. (They banned many uses of expanded polystyrene back in 2009.)
• Malibu, CA, now prohibits retail stores and restaurants from using single-use plastic straws, stirrers, and cutlery (and it banned expanded polystyrene, too, starting back in 2005, broadening the prohibition to items including packaging materials, meat and fish trays, egg cartons, and shipping containers unless compostable or recyclable.)
• Plastic carryout bag bans have popped up in many localities, including the entire State of California, as of late 2016. The state’s law calls for groceries and other food stores, pharmacies, convenience stores, and liquor stores to provide reusable or recycled paper bags and charge at least 10 cents for them.

The plastics industry’s big trade group, the Plastics Industry Association, has, not surprisingly, got a lot to say on these topics. While the group agrees that debris in the oceans is a real issue that needs to be addressed, it says it’s essentially a problem of plastics entering the marine environment, not a problem of the plastics as such, and calls for “additional focus on recycling, advances in waste management, energy recovery and non-mechanical recycling technologies.”

The plastics group calls for more “investment in a new generation of waste management solutions, especially as China and other countries who have been the primary processors of scrap plastic recycling, make significant policy changes that require the U.S. to make new investments.”

United Nations Environment, which coordinates the United Nations’ environmental activities “assisting developing countries in implementing environmentally sound policies and practices,” issued a report in June, called “Single-Use Plastics, A Roadmap for Sustainability.”

The 104-page report begins by acknowledging that “Plastic is a miracle material,” but asserts that “Plastic packaging accounts for nearly half of all plastic waste globally.”

The report says, “More than 60 countries have introduced bans and levies to curb single-use plastic waste,” and contains a survey of actions that governments around the world have taken against plastics. The report says, “The most common single-use plastics found in the environment are, in order of magnitude, cigarette butts, plastic drinking bottles, plastic bottle caps, food wrappers, plastic grocery bags, plastic lids, straws and stirrers, other types of plastic bags, and foam take-away containers.”

The organization says, “Plastic bag bans, if properly planned and enforced, can effectively counter one of the causes of plastic overuse,” but they’d also like to see governments address causes by improving “waste management practices and introduce financial incentives to change the habits of consumers, retailers and manufacturers, enacting strong policies that push for a more circular model of design and production of plastics. They must finance more research and development of alternative materials, raise awareness among consumers, fund innovation, ensure plastic products are properly labelled and carefully weigh possible solutions to the current crisis.”

In short, there seems to be increasing momentum in the direction of opposition to plastics products, world-wide. All packagers would be well-advised to stay alert and get involved in these public policy debates in order to minimize misguided measures.

Eric Greenberg can be reached at [email protected] or visit his firm’s Web site at www.ericfgreenbergpc.com.