From Production to Disposal: Navigating the Legal Risks of Plastics

With growing awareness of the environmental, health, and legal implications associated with the production, use, and disposal of plastics, plastics liability is an increasingly pressing concern.

Why are plastics a concern? 

The lifecycle of plastics begins with the production phase involving oil and gas extraction, followed by petrochemical processing and polymer creation. Plastics are then used across a wide range of industries, including consumer goods, packaging, textiles, electronics, and construction. Finally, the disposal phase includes recycling, incineration, landfilling, and, in many cases, mismanagement.  

Plastics pose risks throughout this lifecycle. During production, emissions and chemical spills can harm workers and nearby communities. In the use phase, micro- and nanoplastics are released through everyday activities such as tire wear, textile washing, and marine operations. Disposal is equally problematic, with mismanaged waste leading to widespread environmental contamination and health hazards. Research has linked chemical additives like bisphenols, phthalates, and flame retardants to serious health issues, including endocrine disruption, reproductive harm, and cognitive disorders. Micro- and nanoplastics are also under increasing scrutiny for their potential to cause gastrointestinal and systemic harm, although the science is still developing. 

The scale of the issue is significant: approximately 400 million tonnes of plastic are produced annually, yet only 9% is recycled (1). The remainder is either incinerated, landfilled, or mismanaged, contributing significantly to environmental degradation. Moreover, the production of plastics accounts for 4–5% of global greenhouse gas emissions (2) and involves over 13,000 chemicals (3), many of which are toxic. 

To better understand the social and economic costs of plastics, the Minderoo Foundation collaborated with Boston College and Clyde & Co. Their research found that the harms caused by certain chemicals are well-established, with global costs exceeding $100 billion annually. Other harms, particularly those related to microplastics, are still emerging but are expected to be significant. For instance, microplastics may severely impact wastewater treatment systems and ecosystem services. Some harms, such as those affecting marine natural capital, remain under-researched but could have profound long-term consequences. 

Liability pathways 

From a legal perspective, plastics-related claims may arise through several pathways: health risks, harm to nature, economic harm, and corporate wrongs. Health risks involve individuals exposed to harmful chemicals through their work, consumer products, or environmental factors. Harm to nature includes environmental contamination and biodiversity loss. Economic harm encompasses damage to infrastructure, such as water treatment plants. Corporate wrongs involve greenwashing, shareholder claims, and failures to mitigate known risks. 

Claim scenarios 

Several hypothetical case studies can be used to illustrate how these claims might unfold.  

Employee claims 

Employees exposed to phthalates at work could develop diseases and sue their employers. While the duty of care is clear, proving causation is challenging due to widespread exposure and multiple potential sources. Courts may consider relaxing causation standards, as they have in asbestos litigation, but this is not guaranteed. 

Consumer claims 

Consumers exposed to microplastics through food packaging, for example, would face significant hurdles in bringing product liability claims. They would need to prove that the product was defective, that the microplastic caused their illness, and that it came from a specific product and manufacturer. These claims are currently difficult to substantiate, although proposed EU product liability reforms may shift the burden of proof to manufacturers in complex cases. 

Public liability claims  

Communities near landfills contaminated by microplastics could bring public liability claims. These claims also face causation challenges, though class actions may be attempted. However, establishing a valid class and linking exposure to harm remains difficult. 

Environmental liability claims 

Polluters, including municipal entities and manufacturers, may face claims from regulators, NGOs, and the public. While primary polluters, such as landfill operators, are more directly liable, manufacturing polluters may also be targeted, especially if their products contributed to contamination. Alternative legal theories, such as market share causation—where liability is apportioned based on market share—are being explored but are not yet widely accepted. 

Legal landscape 

NGO activism is increasing, with lawsuits being brought against major corporations like Coca Cola, Danone, Exxon, Nestlé and Pepsico for failing to manage plastic risks. Regulators are also using environmental laws to demand remediation and impose restrictions. Meanwhile, international negotiations are underway to establish a legally binding plastics treaty, which would cover the entire lifecycle of plastics and address both environmental and health impacts. 

The potential for plastics-related claims is growing. If we return to the claim pathways discussed above, most of those pathways are only expected to result in moderate claims activity due to the challenges of proving causation. However, the potential severity of claims is expected to be high, particularly if legal standards shift or scientific consensus strengthens. The exception is harm to nature, which is seen as having moderate severity due to its typically localized impact. 

Conclusion 

In conclusion, plastics liability is a rapidly evolving area of risk with significant implications for insurers, regulators, and corporations. As scientific understanding deepens and legal frameworks adapt, the potential for large-scale litigation and regulatory action grows. Stakeholders are encouraged to monitor developments closely, support transparency, and prepare for a future where plastics-related liabilities may become as prominent as those related to asbestos or climate change.