Garbology: Our Dirty Love Affair With Trash (25 page)

The case settled within six months. TerraCycle agreed to stop claiming to be superior to Miracle-Gro and to alter its packaging color scheme once existing stocks ran out, to stop using the phrase “goof-proof” and to take down the
SuedByScotts.com
website. No money changed hands, and each side paid its own litigation costs.

The legal victory, then, went to Miracle-Gro, which made no concessions. The benefits, however, all went to TerraCycle, which considered the packaging changes minor but the publicity it got in the process priceless. By 2008, the company was solidly profitable; revenues reached $7.5 million in 2009 and $20 million in 2010.

Scotts’s Miracle-Gro, meanwhile, saw a reversal of its fortunes in subsequent years, as droughts and recession pummeled the lawn care businesses, its stock dropped precipitously, and the EPA concluded in 2008 that Scotts had sold four pesticide products that were “unregistered, falsely and misleadingly labeled, or both.”
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All four products were ordered recalled.

Meanwhile, TerraCycle achieved rapid growth as a green company by moving the company’s products beyond the worm poop lineup by extending its original vision for rethinking and reinventing waste. Szaky expanded the company’s bottle brigade program to collect all sorts of consumer product waste that was difficult or impossible to recycle—chip bags, energy bar wrappers, yogurt cups, juice pouches. Then TerraCycle scientists and engineers found a way to “upcycle” these environmentally damaging waste products. The company did not melt, crush or pulp them—the standard, energy-consuming recycling tactics—but just cleaned them up and found novel ways to construct products with them. He got the companies that made the products—Frito-Lay, Cliff Bars, Capri-Sun—to pay for the collection program, and then he took their waste, with their highly visible brands still on them, and turned them into Capri-Sun backpacks, Doritos jackets, clipboards, notebooks and a host of other products (the coasters and clipboards made out of old circuit boards are particularly cool). These were then sold in Target, Walmart and other major retailers. Szaky called his new business model “sponsored waste.”

By 2011, sponsored brigades in fourteen countries were sending billions of pieces of trash to TerraCycle—a vast, green supply chain of upcyclable garbage—and in return, the brigades got up to 2 cents per piece for their school or charity. It’s a business model that has made TerraCycle one of the fastest-growing green businesses on the planet—and it might never have happened without a big lawsuit to propel a worm-poop farmer into the big time.

L
IKE THE
CEO of TerraCycle, Andy Keller can laugh these days about his legal battle with a more powerful rival. Now he can cheerfully suggest that, in the end, his small company benefited from being targeted by what he thinks of as “Big Plastic”—even though the plastic companies who sued him also claim victory.

“They can say that,” Keller says, “but I think it’s clear this lawsuit was the biggest mistake they ever made. It put ChicoBag on the map. It gave me a national, maybe a global stage, to talk about these issues, to talk about kicking the disposable habit, being less wasteful, protecting the environment—and how each of us can do our part. And it ended up costing us nothing. We didn’t have to do anything we wouldn’t have done anyway.”

But at the time of the filing, Keller wasn’t laughing. The suit—with its accusations that ChicoBag had engineered “a continuous and systematic campaign of false advertising and unfair competition”—had the potential to ruin his still fledgling green business.

The suit was filed by a trio of plastic bag makers—Hilex Poly Company of Hartsville, South Carolina (ten plants in seven states), Superbag Operating, Ltd., of Houston, and Advance Polybag, Inc., of Sugar Land, Texas. Together they are among the largest plastic grocery bag makers in the country. All three are members of the Progressive Bag Affiliates of the American Chemistry Council (an elite group; fellow members were: The Dow Chemical Company, ExxonMobil Corporation, Total Petrochemicals USA, and Unistar Plastics). Hilex Poly was also heavily invested in the Save the Plastic Bag Coalition that sued a number of cities for adopting plastic bag bans.

The three plastic companies asserted that ChicoBag used its “Learn the Facts” company Web page to cause the plastic bag makers “irreparable harm” through deceptive trade practices and false claims. There were five statements the plastic makers took issue with that had been published on ChicoBag’s website:

•   A reusable bag needs only to be used eleven times to have a lower environmental impact than using eleven disposable bags.

•   Only 1 percent of plastic bags is recycled.

•   Somewhere between 500 billion and 1 trillion plastic bags are consumed worldwide each year.

•   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 contain thousands of pounds of our discarded trash, mostly plastics.

•   Each year hundreds of thousands of seabirds and marine life die from ingestible plastics mistaken for food.

The plastic companies did not explain how such general claims published on a reusable bag company’s website could affect their commercial disposable bag business. The vast majority of consumers had never heard of Hilex Poly or the other companies. Proving the statements false would not win the case for the plastic makers; they would also have to show that these statements caused specific injuries—a formidable legal hurdle. They would have to prove, for instance, that executives at a major supermarket chain perused ChicoBag’s website and then decided to stop buying plastic bags from one of the three defendants. That’s the sort of specific damage that has to be proven under the Lanham Act, the same legal bludgeon Miracle-Gro used against TerraCycle—you don’t win just by alleging some vague reputational injury. And that specific damage would have to be linked directly to ChicoBag, as opposed to the hundreds of other websites and major media outlets that had similar, and often more damning, statements about plastic bags causing environmental harm. What this suit really was about, one legal commentator opined at the time, was targeting a single outspoken critic of plastic bags in hopes of shutting up other critics who might not want to be next on the firing line. ChicoBag would be an example, an object lesson—a deterrent.
¹⁰

The suit was filed in South Carolina, which has nothing like California’s law against SLAPP suits (Strategic Lawsuit Against Public Participation). In his home state Keller could challenge the validity of such a lawsuit as a veiled tactic to censor, intimidate and silence a critic by saddling ChicoBag with backbreaking legal bills. In South Carolina, that wasn’t an option. The two sides would have to fight the case on its merits.

It’s common for websites to report statistics, even controversial and extravagant ones, without much (or any) sourcing. ChicoBag, however, had annotated its “Learn the Facts” page and provided the sources for five statements challenged by the plastic bag makers, which were: the EPA,
National Geographic
and the
Los Angeles Times
. The ChicoBag website quoted these sources correctly—that wasn’t in dispute. But if the claims were false and they actually harmed the plastic bag business, even repeating them accurately could still constitute a violation of the Lanham Act.

The plastic bag companies first let their displeasure with ChicoBag be known by sending a cease and desist letter to Keller, a common prelude to suing that gives alleged miscreants a chance to clean up their acts before being taken to court. And Keller responded to the letter by taking those five statements off his site until he could investigate and, if there were errors, correct them. He adds, “Then they sued me anyway.”

But Keller still conducted his investigation—and decided it was the plastic companies, not ChicoBag, who had it wrong.

For the first statement targeted in the lawsuit, Keller discovered the EPA’s website no longer displayed the information he had relied on about shopping with a reusable bag eleven times (although it’s still widely quoted on the Web). That didn’t make it false, just inaccessible. So he turned to a life-cycle report on supermarket bags that Hilex Poly itself had cited. That study confirmed Keller’s point: that a reusable grocery bag made of nonwoven polypropylene plastic would have to be used at least eleven times to have a lower carbon footprint than using disposable single-use grocery bags. (There were other comparisons in the study, too: Using a paper bag three times would do the trick, while it would take 131 trips to the market with a cotton bag to have a lower carbon footprint—which meant the material used for a reusable bag was critical. The cotton footprint sounds very high, but given the average American’s five-hundred-bag annual habit, it would still be an improvement given the long life of a well-made cotton bag.) In preparing for his legal defense, Keller hired a scientist who had worked extensively for Hilex Poly and asked him to perform a life-cycle analysis that found ChicoBag’s line of products made out of recycled PET plastic (basically old soda bottles) did even better. One of those bags had to be used only nine times to have a better environmental footprint than disposable bags.
¹¹

As for the second claim—that only 1 percent of plastic bags were recycled—there’s no question that the EPA reported this statistic in its 2005 Municipal Solid Waste Report. The plastic bag makers admitted as much, but complained that the information was so dated as to be misleading. But 2005 is the last year such a statistic on the recycling of plastic bags is even available from the EPA. After that year—due to the plastic industry itself—the statistics for bags were combined with plastic wraps and films. Keller repeatedly requested separate plastic bag stats from Hilex Poly, but none ever came. Combining the recycling stats from different kinds of plastic is what’s really misleading, Keller argues. But even using those more recent combined numbers, the recycling rate for plastic films, bags and wraps is still less than 10 percent in more recent EPA data. “Anemic,” Keller calls it. “Certainly nothing to brag about.”

The third challenged statistic—that the worldwide consumption of disposable plastic bags of all types is 500 billion to 1 trillion—may not be accurate, Keller realized after investigating further. But that’s only because the number is almost certainly
higher
. Keller compiled plastic bag consumption data for the European Union, China, Australia, Japan, Canada, India and the U.S., and painstakingly detailed on his website the sources and calculations that led to the 1 trillion annual plastic bag consumption estimate. That figure does not include areas for which he lacked good data: South America, Africa, Central America, the Middle East, Eastern Europe and a sizable portion of Asia—which means, Keller says, that the trillion estimate is in no way unfairly criticizing the plastic industry. It’s giving them a free ride.

Keller’s description of the Pacific Garbage Patch as a giant floating landfill was based on reporting by the
Los Angeles Times
(which used the phrase “world’s largest dump” in its Pulitzer Prize–winning “Altered Oceans” series of reports
¹²
). This is similar to a spate of news and blog reports on the gyre that likened the plastic pollution to a floating continent or a mass of debris. Using the term “landfill” or “dump” is more metaphorical than literal, Keller says, and there are definitely more precise ways to describe it. But his description, as he sees it, only underestimates the challenge posed by the huge area of ocean where plastic pollution is concentrated. It can lead people to envision a more solid, visible collection of plastic waste—and therefore an easier one to clean up—rather than the diffuse soup of small confetti-like particles that’s really out there, and that he witnessed firsthand while accompanying a research voyage with the 5 Gyres Institute.

Finally there was the fifth challenged statement, which stems from one of the most oft-repeated but most thinly sourced of statistics on marine pollution—the death of hundreds of thousands of seabirds and marine life from marine plastic debris. Many publications and organizations have repeated this information before and since Keller wrote his “Just the Facts” Web page. Keller’s version of the statement is sufficiently general and conservative enough (many websites claim it’s millions of seabirds killed every year, not hundreds of thousands) to be supported by the scant number of scientific reports that tried to quantify the problem, according to the National Oceanic and Atmospheric Administration.
¹³

Convinced that his original information, while it could be improved, was not false and misleading, Keller expanded his plastic research. He created and published on his website an extensive timeline on the many lawsuits and lobbying efforts by the plastic industry to preserve their disposable bag business and to undermine opponents, dating all the way back to the industry’s successful battle a half century ago to block a ban of plastic dry-cleaning bags that had been linked to child asphyxiations.

The lawsuit and Keller’s dogged response brought media attention and increased sales to ChicoBag.
Fortune
,
Rolling Stone
, the
New York Times
, the
San Francisco Chronicle
and other media outlets covered the case, and Keller relished the role of “little guy facing off the schoolyard bully.”

“I really think they were trying to make an example of me,” Keller later reflected. “The plastic bag is under attack all over the world, and after years of Big Plastic winning all its battles, people and communities finally began waking up to the fact that it’s crazy to make a product that gets thrown away after one use, that lasts for hundreds of years, that gets blown away and washed down rivers and into the ocean. And then here I come with Bag Monster, and I think it really got under their skin. It was the last straw for them.”