Concerns surrounding plastic, particularly microplastics and synthetic microfiber, pollution are growing. As federal and state governments continue to focus on this issue, lawsuits seeking to hold companies accountable for their alleged contributions to plastic pollution continue to proliferate. Given this litigation trend and the real prospect of plastics-related liability, companies should consider the role that insurance can play in offsetting defense costs and potential losses. In this client alert, we provide a brief update on governmental efforts to address plastic pollution. We then discuss the state of plastics litigation and close by analyzing the types of insurance coverage that may protect policyholders in this evolving space.
1. Governmental Efforts to Address Plastic Pollution
The Microbead-Free Water Act, enacted in 2015, banned the manufacture and introduction or delivery for introduction into interstate commerce of rinse-off cosmetics containing intentionally added plastic microbeads. While this legislation just targets rinse-off cosmetics, the Plastic Pellet Free Water Act, introduced in the Senate in July 2023, would prohibit the discharge of plastic pellets or other pre-production plastic materials from facilities generally.
In addition to existing regulations that target chemicals used by, and emissions resulting from, plastic producers, federal efforts have taken the form of plans and priorities to better understand and address microplastics pollution generally, with some discussion of policies and regulatory tools that may be used to reduce same.
For example, in 2020, Congress passed the Save Our Seas 2.0 Act, which required the Interagency Marine Debris Coordinating Committee to submit to Congress a report on microfiber pollution that includes, among other things, recommendations for reducing microfiber pollution and a plan for how federal agencies can lead the reduction effort. The US Environmental Protection Agency's (EPA) Trash Free Water Program and National Oceanic and Atmospheric Administration's (NOAA) Marine Debris Program coordinated the development of this report, submitted to Congress in 2022. Further, in April 2023, the EPA issued its Draft National Strategy to Prevent Plastic Pollution, which provides voluntary actions that can be implemented in the United States aimed at eliminating the release of plastic waste from land-based sources by 2040. Most recently, on July 19, 2024, the Biden-Harris Administration released its new government-wide strategy to target plastic pollution. Of note, the strategy identifies several ways that the Administration aims to evaluate and address plastic pollution under existing federal laws.
While a complete review of state efforts to address plastic pollution is beyond the scope of this client alert, California is taking a lead when it comes to microplastics with its Statewide Microplastics Strategy, approved by the Ocean Protection Council in 2022. Generally, state efforts have sought to prohibit microbeads in personal care products, ban or restrict the use of certain single-use plastics, and hold producers responsible for the end-of-life management of their products. State efforts targeting synthetic microfiber pollution have sought to require labeling on synthetic clothing and the installation of microfiber filtration systems on washing machines.
2. Plastics Litigation
So far, lawsuits have targeted the direct handling and discharging of microplastics, the design and sale of products that indirectly result in plastic pollution, and statements concerning product recyclability or similar, and have taken the form of citizen suits, consumer protection and greenwashing claims, public nuisance claims, and securities claims.
Citizen Suits
Citizen suits have targeted both the direct handling and discharge of microplastics, as well as microplastics releases allegedly resulting from product design. For example, in June 2019, a plastic producer was found liable under the Clean Water Act for unlawful discharges of plastic pellets (also known as nurdles) and polyvinyl chloride powder, a widely produced synthetic plastic polymer, from one...
