Plastics on trial: a briefing series on evolving liability risks related to plastics 2) Hazardous chemicals

In this Brief, we focus on two groups of chemicals associated with plastics manufacturing – bisphenols and phthalates – and explore legal action taken against companies related to their presence in consumer products.

• Recently, plastic has taken centre stage in concerns around the effects of exposure to ‘endocrine disrupting chemicals’ or EDCs. These can mimic or block hormone-driven processes in the body and are linked with serious health conditions. Plastics are a major source of EDCs, including bisphenols and phthalates.
• There are also signs that tighter regulations restricting the use these chemicals in consumer products may be on the horizon. The US authorities – who have been resistant to continued calls for stricter laws until now – are facing renewed pressure on BPA after experts from EU counterpart, the European Food Safety Authority, published an opinion that the ‘safe level’ of BPA is more than 5000 times below what most Americans are exposed to. The US Food and Drug Administration has also faced legal action for delaying on reaching a decision on restricting phthalates. Meanwhile, the EU is pushing forward with its ambitious plans to restrict groups of hazardous chemicals – with bisphenols and phthalates identified as priorities.
• In the brief, we consider how regulatory developments such as these can open avenues for private litigation both directly and indirectly.
• To date, most legal cases have asserted the corporate marketing of products is inconsistent with the presence of these chemicals. In the US, consumers have launched class action against food companies General Mills and Kraft Heinz after testing revealed the presence of phthalates in boxed macaroni and cheese products. The claims allege mislabelling and false advertising, on the basis that the presence of phthalates is inconsistent with marketing statements made about the products. US drinks manufacturer, LaCroix also faced a claim from an ex-employee, alleging that the company’s statements it had phased out ‘BPA’ – a type of bisphenol – were made prematurely.
• In France, a probe from the competition authorities is exploring whether over 100 companies and 14 trade associations colluded in staying silent over whether packaging contained BPA “to the detriment of consumers”. This is the largest potential cartel ever investigated by the French Competition Authority. If the authority makes a finding of collusion, this is predicted to lead to follow-on claims for damages from consumers against the companies.
• We also reflect on what lessons can be learned from the trajectory of PFAS lawsuits to build a picture of how plastic-additive litigation could develop over time, noting that the pool of defendants has widened over time, from chemicals manufacturers to consumer goods companies.

Read Brief 1) Greenwashing.

Read Brief 3) In the environment.

Read Brief 4) Waste disposal & recycling.