California AG files lawsuit against plastic bag manufacturers

As part of an ongoing statewide investigation into plastic bag producers and their recyclability in California, Atty. Gen. Rob Bonta announced Oct. 17 a lawsuit against Novolex Holdings LLC, Inteplast Group Corp. and Mettler Packaging LLC for allegedly violating the state’s single-use plastic bag ban (Senate Bill 270) as well as its Environmental Marketing Claims Act (EMCA), False Advertising Law (FAL) and Unfair Competition Law (UCL).

According to the attorney general’s office, the state’s Department of Justice issued investigative subpoenas to the three plastic bag manufacturers, which it says demonstrated that their bags were in fact not recyclable in the state, as required under S.B. 270 and as the producers claimed with the labeling on their bags.

The suit claims the producers were unable to produce documents with information regarding the quantity of plastic bags that are recycled at their own facilities; provide any firm evidence that recycling facilities in California process plastic bags, including facilities that producers identified as those they believe recycle their bags; nor identify the percentage of plastic bags the producers sold to stores in California that were recycled.

The attorney general’s office says the producers also affirmed their bags display the “chasing arrows” symbol and direct consumers to recycle the bags, which are “claims” subject to the EMCA. Additionally, the office claims the investigation included a statewide survey to verify whether waste processing and recycling facilities accept plastic bags for recycling, and out of 69 facilities surveyed, only two claimed to accept plastic bags, though they could not confirm if bags were recycled.

“This conclusion confirms that the vast majority of facilities in California do not accept plastic bags or process them for recycling,” the attorney general’s office says in a statement announcing the suit. “This evidence culminates in today’s lawsuit, showing that these manufacturers violated all the laws stated above. In his lawsuit, the Attorney General is seeking monetary penalties, disgorgement and injunctive relief.”

Regarding potential monetary penalties, the suit calls for the packaging producers to pay $1,000 per day for the first violation of S.B. 270, $2,000 per day for the second violation and $5,000 per day for the third and subsequent violations. Per the EMCA, which uses the Federal Trade Commission's Green Guides as a compass to determine recyclability claims about products sold in the state such as the use of the “chasing arrows” symbol, violators are subject to penalties of up to $2,500 per violation. Similarly, FAL and UCL violators are subject to penalties of up to $2,500 per violation.

The suit claims that since S.B. 270 took effect in 2016, the packaging producers have sold and/or distributed more than 4.3 billion plastic carryout bags in California stores—driving at least $33.2 million from 2020 to present.

Settlement announced

The same day Bonta announced the suit against Novolex, Inteplast and Mettler, he also said four plastic bag producers—Revolution Sustainable Solutions LLC, Metro Poly Corp., PreZero US Packaging LLC and Advance Polybag Inc. (API)—reached a settlement resolving alleged violations of S.B. 270, the EMCA, FAL and UCL.

In November 2022, Bonta launched an investigation into plastic bag producers over concerns that their recyclability claims were misleading. He sent demand letters requiring producers to substantiate their claims that their bags are recyclable, including evidence supporting self-certifications of the bags’ recyclability, use of the “chasing arrows” symbol and explicit and implicit claims relating to recyclability.

Per the settlement, Revolution, Metro Poly, PreZero and API have agreed to halt plastic bag sales in California and collectively pay around $1.7 million, which includes about $1.1 million in civil penalties and $636,250 in attorneys’ fees and costs.