Plastics

Supported by our Chemicals, Consumer Products, Litigation, and Sustainability, ESG groups, B&D guides plastics manufacturers, consumer products companies, and others in the plastics value chain on the evolving regulation of plastics and in related enforcement actions and litigation.

Compliance

We counsel on packaging, labeling, material restrictions, recycling, recyclability, and circular economy issues relating to plastics in the U.S. and worldwide, and help companies achieve product regulatory compliance without imposing undue burdens on clients and consumers.

Our work includes tracking and reporting on regulatory changes, including extended producer responsibility (EPR) laws for packaging and advanced recycling and minimum recycled content legislation; counseling clients on mass balance accounting; advising clients on multijurisdictional compliance solutions for plastic product market access in the face of rapid change; advising clients on the classification, controls, and trade bans that apply to certain international shipments of plastic wastes for recycling and recovery pursuant to the Basel Convention and related regional and bilateral accords; counseling on non-binding ESG commitments and green marketing claims around plastic waste reduction and recycled content targets; and advising companies and trade associations on the ongoing United Nations Environment Assembly (UNEA) treaty negotiation on plastic pollution. We also advise on the selection of vendors, the development of vendor requirements, and the drafting of vendor contracts (such as those for recyclers).

Relevant examples of our work include:

• Advising clients on TSCA-related obligations applicable to plastic feedstock to be imported and used for chemical recycling operations.
• Advising a global resin producer on a plastic-waste take-back program from downstream users in Europe, including waste classification under EU law and plastic waste feedstock transfers for use in chemical recycling operations in the U.S.
• Advising a global plastics and chemicals producer on substantiation of recycled content claims, including assessment of third-party certification options and use of mass balance accounting.
• Assisting clients in preparing comments to EPA regarding its advanced notice of proposed rulemaking under the Clean Air Act regarding the treatment of pyrolysis and gasification operations used in chemical recycling facilities, to emphasize that these operations should not be regulated as incineration.
• Advising U.S. chemical manufacturers during negotiations to amend the classification status of plastic wastes under the Basel Convention, and assisting plastic waste importers with navigating new global controls on plastic waste transboundary movements.
• Advising plastics manufacturers and industrial and consumer products companies on national and subnational laws banning or restricting plastic products and packaging, as well as new EPR programs and initiatives for plastic packaging in the U.S. and key markets worldwide.
• Preparing and updating a Fortune 50 client’s global specifications for products obtained from suppliers, including provisions related to material restrictions, packaging, product labeling, supply chain disclosures, California’s Proposition 65, and more.
• Helping a major manufacturer of consumer products develop product labels and related documents that could be used worldwide to instruct end-users how to properly recycle or dispose of the products at their end of life.
• Evaluating and updating marketing materials for two Fortune 500 clients to ensure that statements relating to recycling and climate goals are consistent with the Federal Trade Commission Green Guides, state consumer protection laws, and other requirements.
• Providing regulatory tracking and compliance assistance to a global food service provider on emerging single-use plastics regulations that affect its operations in jurisdictions worldwide, including Latin America.

Enforcement & Litigation

Drawing on decades of experience with government investigations and environmental, product liability, and toxic tort litigation throughout the U.S., B&D defends clients in enforcement actions and litigation through which plastics have become an increasingly high profile, politically-charged target of citizen groups and governments.

Our litigators have defended numerous mass tort cases, including class actions, arising from alleged environmental exposure, as well as government environmental enforcement actions in both state and federal courts. We also have experience coordinating with technical consultants and communications and PR professionals to accurately inform regulators and stakeholders and correct misinformation.

Relevant examples of our work include:

• In a major criminal matter, defending a Fortune 50 commodity chemical manufacturer against federal and state claims that chlorinated solvents and plastic pellets migrated from a rail car cleaning facility into adjacent waters. Based on our development of a number of lines of defense, the governments ultimately did not prosecute the case.
• Assisting a prominent plastic film manufacturing company respond to an EPA Spill Prevention, Control, and Countermeasure (SPCC) enforcement action arising out of a post-spill EPA inspection, develop and implement a compliant SPCC plan, and leverage necessary improvements to offset potential enforcement penalties.
• Defending a putative class action in California arising from alleged nuisance relating to a landfill.
• Representing a PFAS manufacturer in a challenge by environmental NGOs to New Hampshire’s maximum contaminant levels for four PFAS substances. We obtained a preliminary injunction on the implementation of the standards and continue to represent the client on appeal to the New Hampshire Supreme Court.
• Defending two large U.S. chemical manufacturers in toxic tort actions in federal court in Louisiana relating to ethylene oxide.
• Defending a global chemical manufacturer in toxic tort/products liability cases brought by water providers in New York relating to 1,4 dioxane.
• Defending a solvent manufacturer in nuisance cases in California state court relating to alleged groundwater contamination with PCE.
• Defending a major oil and gas company against product liability and common law tort claims brought by local governments in Washington State over the industry’s purported knowledge of climate change effects arising from the production and sale of fossil fuels.
• Representing a large retailer in a consumer protection class action related to green marketing, where the plant plaintiff sought to use the case as an alternate means of applying pressure to companies to address various environmental concerns. We successfully obtained an injunctive-only early settlement that avoided costly expert discovery and class certification battles and created more time for the company to make significant decisions regarding the marketing and sale of the products going forward.