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Plastics Liability Paradigm Shift

California sues Exxon Mobil, alleging it misled the public about the recyclability of plastics and contributed to the plastic pollution crisis, echoing past tobacco litigation.

Eric F. Greenberg
Eric F. Greenberg

We might be witnessing a revolution in ways to place legal blame on plastic packaging companies. In late September, the State of California filed a lawsuit against Exxon Mobil over package recycling, and it’s a new kind of attack.

According to the state’s attorney general, Rob Bonta, “For decades, Exxon Mobil has been deceiving the public to convince us that plastic recycling could solve the plastic waste and pollution crisis when they clearly knew this wasn’t possible.” He also asserted that the company “falsely promoted all plastic as recyclable, when in fact the vast majority of plastic are not and likely cannot by recycled, either technically or economically.”

The state claims the company’s intentionally false statements and other actions led to pollution. California accuses Exxon Mobil, a top maker of substances used for making plastics, of creating a public nuisance; polluting water and natural resources; putting out false or misleading advertising including environmental marketing; and unlawful, unfair, or fraudulent business practices. 

This California case attempts to present a new and different paradigm for imposing legal liability on large corporations. For those old enough to remember, this case has echoes of the actions against tobacco companies in the 1990s, in which the companies were alleged to have legal liability for causing the health problems related to smoking. (Those cases resulted in a settlement between 46 U.S. states and four tobacco companies where the companies paid hundreds of billions of dollars that would, for example, cover healthcare costs for smokers.) 

The facts alleged in the government’s court filing recite the history of the company’s public statements and actions around plastics recycling. It’s very detailed, and reads more like an NGO’s list of grievances about the plastics industry rather than a legal pleading against a single company.

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