382. Plastic Bag Makers Sue Reusable Bag Competitor

Kim Komenich/San Francisco Chronicle, via Associated Press
Andy Keller, the inventor of the ChicoBag and the company's
president, dons 500 bags to dress up as “Bagmonster.”

By Felicity Barringer, The New York Times, June 11, 2011 

SAN FRANCISCO — The plastic bag industry, increasingly on the defensive as municipal bag bans proliferate, has gone on the attack against ChicoBag, a competitor that bills itself as an eco-friendly alternative. A federal lawsuit in South Carolina accuses ChicoBag of illegal trash-talking about plastic bag waste.

The lawsuit, filed by three leading plastic bag manufacturers, contends that ChicoBag (whose reusable bag, when compressed into its carrying pouch, looks like a slightly squished Hacky Sack) knowingly overstated figures like the size of the garbage patch in the Pacific Ocean and the number of marine creatures killed by eating plastic garbage.

Andy Keller, 38, the inventor of the ChicoBag and the company’s president, said Wednesday he believed the industry was going after a small competitor because “their product” had “become the poster child of unnecessary waste.” He added that the facts on his Web site “have been part of the public debate for years.”

Not so, said Philip Rozenski, the director of marketing and sustainability at Hilex Poly, a maker of plastic trash bags. He said that ChicoBag’s Web site cites Environmental Protection Agency information that is outdated. The E.P.A. no longer endorses estimates like the one ChicoBag cited: that only 1 percent of plastic bags are recycled. Mr. Keller said an industry site used the same figure until recently.

Citing E.P.A. figures from 2009, Mr. Rozenski said that 11.8 percent of bags, sacks and wraps made from the most common polyethylene compounds are recycled. That category, however, also includes shrink wrap, plastic coverings over fresh grocery items or the plastic enclosing cartons of water bottles.

Perhaps the most creative form of trash-talking done by ChicoBag, however, is not part of the lawsuit. Noting that Americans use an average of 500 plastic bags a year, Mr. Keller sometimes dresses up as “Bagmonster,” donning 500 bags and going to rallies in his trashy regalia.

Mr. Keller also notes that Hilex Poly’s Web site also appeals to the environmentally conscious, promoting new reusable or biodegradable products and encouraging reduction in paper bag waste. He said, “We agree on all those things. Their business is single-use bags, mine is reusable bags — we disagree on the proper course of action.”

Mr. Rozenski styles his company’s lawsuit as a business case. “This is about a direct competitor making false and misleading claims within the marketplace. When ChicoBag is making these claims, it directly benefits Chico.”

Rick Kurnit, a lawyer specializing in claims made under the federal Lanham Act prohibiting false and misleading advertising, indicated the plastic bag manufacturers may not have an easy time of it, even if Mr. Keller’s claims prove to be exaggerated.

“If a consumer cares about the environment, lowering their footprint, if he cares about disposal — would it really matter if the swirling mass in the Pacific is the size of Texas or just Rhode Island?” Mr. Kurnit said.

He added, “It kind of comes down to whether the degree of exaggeration, as alleged, if proven, would be sufficiently material as to influence a consumer’s purchasing decisions.”