Press release: 1 October 2024
Lawyers warn of risk of legal action over misleading recycling claims, amid new revelations
- New legal analysis by environmental law charity ClientEarth exposes how certain plastic recycling claims on products and packaging are misleading consumers.
- The news comes as a new report states that out of 40 bundles of soft plastic packaging waste collected for recycling at Sainsbury's and Tesco stores across England, 70% of those which reached a final destination were incinerated, either as fuel pellets or for energy recovery.
- ClientEarth lawyers are warning of a “systemic issue” in the sector and urging consumer protection regulators to crack down on misleading claims.
Environmental lawyers at ClientEarth have published new legal analysis shedding light on the legality of plastic recycling claims under consumer protection law.
They have issued a warning to supermarkets and producers: misleading recycling claims on products already on the market can be legally challenged by consumer protection authorities.
In the UK, plastic packaging commonly features symbols and statements which instruct consumers that the plastic packaging is recyclable and/or explain how to recycle it. These include instructions such as ‘Recycle’ or ‘Recyclable’ and green circular or triangular ‘closed loop’ symbols, sometimes very prominently.
When seeing those claims about recycling, consumers will think the packaging in question is going to be recycled, and as such that its environmental impact will be adequately reduced or mitigated. [1]
In fact, a 2023 study by the UK Advertising Standards Authority found most participants presumed terms ‘recycled’ and ‘recyclable’ were wholly positive for the environment; that brands were being truthful and transparent in using them; and that recycling was a circular process that always worked.
However, recycling cannot make plastic circular – it merely delays the inevitable disposal of plastic. It is also limited. The majority of plastic packaging cannot and will not be recycled. In fact, only 9% of plastics ever produced have been successfully recycled. The rest is incinerated, landfilled or dumped into the environment.
Katie-Scarlett Wetherall, lawyer at ClientEarth, said: “Many consumers want to minimise their impact on the environment in the face of a pollution crisis, and circular products are attractive to them.
“But recycling claims on packaging can mislead consumers into thinking a product wrapped in plastic is a sustainable option. This doesn’t mean recycling is useless, but it does mean that we can’t have recycling holding back the necessary move away from plastic packaging.”
A new report by Everyday Plastic and the Environmental Investigation Agency has added another dimension to the recycling debacle, giving reasons to doubt that soft plastic – any plastic that can be scrunched in the hand – is being recycled as consumers believe. 40 trackers were attached to soft plastic collected via Tesco and Sainsbury’s specialised recycling schemes. Of the 17 trackers that reached a final destination, 70% of the plastic packaging was incinerated for energy recovery or burnt as fuel, with the remainder downcycled into lower quality plastic, itself destined for waste or incineration.
The lawyers are urging regulators to intervene where strong evidence is available that plastic recycling claims are misleading consumers, as in the cases of:
- Claims made in relation to plastics that are very difficult or impossible to recycle, such as flexible plastics.
- Claims that use prominent circular/triangular ‘closed loop’ symbols and misleading statements that imply plastic can be recycled over and over again, such as “100% recyclable” or 100% recycled”.
And some regulators are already taking action. Following the complaint we supported in November 2023 regarding misleading “100% recyclable” and “100% recycled” claims made by Coca-Cola, Danone and Nestle, in August 2024 the Hungarian consumer protection regulator announced they were investigating Coca-Cola for misleading 100% recyclable claims made on the brands packaging.
Wetherall added: “Through labels on product packaging and in-store signage inviting customers to recycle their soft plastics at store, Tesco and Sainsbury’s are making misleading claims about the recyclability of soft plastics.
“We’re faced with a systemic issue in the packaging sector, despite the fact that consumer protection law requires businesses to make it clear when a product has an overall negative impact on the environment. This means consumer protection authorities such as the UK Competition and Markets Authority have grounds to legally challenge these claims. Single use plastic packaging will never be a sustainable choice so supermarkets and traders need to rapidly reduce plastic at source and offer reusable packaging.”
ENDS
Notes to editors:
[1] Recycling claims which feature circular loop imagery claims misrepresent the reality of the packaging’s environmental impact across its lifecycle, by emphasising positive aspects (e.g. the theoretical possibility of recycling) which are in reality only marginal and incomplete.
Plastic industry statements from as long ago as the 1980s have been uncovered, which recognise that: “[r]ecycling cannot go on indefinitely, and does not solve the solid waste problem” and “recycling cannot be considered a permanent solid waste solution, as it merely prolongs the time until an item is disposed of.” Therefore, plastic recycling claims have the potential to mislead the average consumer about the environmental impact of plastic packaging. These claims influence what people buy and are as such unfair commercial practices.
The legislation governing consumer-facing claims in the EU is the Unfair Commercial Practices Directive (“UCPD”), and in the UK is the Digital Markets, Competition and Consumers Act 2024 (“DMCCA”). The DMCCA incorporates the previous legislation the Consumer Protection from Unfair Trading Regulations 2008 (“CPR”), which implemented the UCPD into UK law. However EU and UK consumer protection law is substantially the same.
The EU Commission and UK CMA have both published guidance to help businesses comply with their obligations under EU and UK consumer protection law.
Read ClientEarth’s briefing here.
ClientEarth has taken or supported a number of legal actions against greenwashing and misleading claims:
About ClientEarth
ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.