Judge: Mr. Justice Bell
McDonald's Corporation
McDonald's Restaurants Limited (Plaintiffs)
vs.
Helen Marie Steel and David Morris (Defendants)
10th day of the proceedings
Brian G. Lipsett, organizing director of the Environmental Background Information Center was a research analyst for the Citizen's Clearinghouse for Hazardous Waste from 1987 to 1992. From October 1987 to November 1990 the Citizens Clearinghouse for Hazardous Waste (CCHW) coordinated a nationwide grassroots campaign (the McToxics campaign) against McDonald's to get them to stop using foam food packaging. The goal of the McToxics campaign was to eliminate their use of foam food packaging.
The foam campaign was essentially related to an effort by local
community activists and community groups to link in
the public mind the issues of manufacturing and disposal. So that when we
deal with a particular product, when we think about in the public sense a
particular product, we understand that we are not just talking about the
use of the product in the middle of its life-span, but we are also talking
about the manufacturing process that goes on at the beginning of the
product's life-span, and an understanding of problems associated with that
product once it has passed its useful lifetime.
The idea was to bring this kind of issue into the public view
and McDonald's, because of its own profligate use of foam food packaging,
became the target because of its widely recognized name, its use through
advertising of the foam food packaging and the identification of this type
of foam packaging as an extremely useless and dangerous product.
Four of the communities that passed orders to bar the use of foam:
The vice president of McDonald's Shelby Yastrow in 1989, during a meeting
with members of CCHW, passed on a copy of a list about five pages long of
local municipalities across the country engaged in or carrying out or
considering the use of foam food packaging bans.
Besides that, in 1990 the Society of the Plastics Industry circulated a
document internally a confidential memo that CCHW found. It said 49 or 50
states in the United States were considering or had enacted restrictions on
foam food packaging or certain types of food packaging, plastic food
packaging.
Many corporations during this period announced that they were going to
cease using foam food packaging. Caesar's Pizza, Wendy's, and Burger King
released public comments about their decisions not to use foam as a food
packaging material in their food services. The coast guard announced that
they would not use foam food packaging on their ships. The United States
Park Service announced they would not use foam food packaging in their
cafeterias and restaurants on park land.
There were at least 3 stages to the way in which McDonald's responded
to the campaign.
The plastics industry came to McDonald's aid in promoting the value of the
food packaging product through various public relations efforts and
advertising efforts that were national in scope. McDonald's itself relied
upon the same kind of technique internally by having people respond to
phone calls about foam. Lorna Ersam is an example of somebody whom
McDonald's used to respond to these concerns as they were raised in the
public and through the news media.
Lorna Ersam is identified in various accounts as a public relations
specialist for McDonald's Corporation.
In the initial stages, McDonald's relied on various types of public
relations techniques to deal with public concern. It later modified these
techniques at the time or immediately following a meeting in 1989 in which
Shelby Yastrow met with representatives of CCHW at a hotel in Washington,
D.C. to discuss the foam issue.
Then, Yastrow agreed to 2 things:
As a response to that, the Clearinghouse agreed we would not picket the
opening of their 10,000th restaurant in Dale City, Virginia, which
McDonald's had planned to use with a great deal of fanfare. So, at that
point the Clearinghouse and foam activists agreed not to picket that
restaurant openly.
After the opening of the restaurant and following Mr. Yastrow's return,
McDonald's Corporation refused to meet with local community activists. So
in the second stage McDonald's acknowledged at least that the Clearinghouse
was an organization that existed and had a viable issue that it was trying
to put on the table and, in response, McDonald's offered to recycle foam.
The experience that we had with McDonald's up to that point led us to
believe that through their recycling (or McRecycling) program, McDonald's
was pursuing another public relations ploy. It may even be a hoax; if it
was not a hoax, it was probably going to be unworkable, but in spite of
that, it would be worth showing in some fashion that McDonald's was planning
to recycle foam.
Prior to the third day of action which was on Earth Day in 1989 -- the
Clearinghouse circulated peel-off labels of the address of
Shelby Yastrow at its corporate headquarters in Illinois and called on
members to mail foam food packaging to McDonald's corporate headquarters to
Shelby Yastrow, so they would be able to better afford, because of the
volume, to recycle foam.
Consequently, many local groups around the nation responded by mailing foam
to McDonald's Corporation headquarters to Shelby Yastrow. That action was
called Operation Send It Back. We understood from anonymous sources that
there was a great deal of foam packaging piling up in McDonald's mail room.
It is also true that in various accounts published in the media Shelby
Yastrow acknowledged McDonald's had received foam, but it is essentially
true that Mr. Yastrow denied the degree to which we believed the foam was
reaching McDonald's headquarters through the mail.
The campaign ended in 1990, in November, shortly after McDonald's announced
they would no longer be using styrofoam food packages; they were going to
virtually eliminate all their foam food packaging within a certain period.
Grassroots leaders around the country concurred that McDonald's had
complied with the central issue in the campaign. They had withdrawn their
use of foam food packaging from the US market. There were concerns raised
at the time (and maintained to this day) that McDonald's did this only in
the United States, primarily, that it was probably going to continue to use
foam food packaging elsewhere.
At least in Germany in 1991 in Bavaria they were using foam food packaging.
Through various accounts it is apparent they continue to use foam food
packaging elsewhere in the world as well to this day.
They probably had not withdrawn the foam in other parts of the world
because McDonald's did not come under the same kind of pressure in other
countries that the McToxics campaign placed on McDonald's in the United
States. If that campaign had never existed, McDonald's would probably
continue to be using styrofoam food packaging in the United States as well.
The first part of the process is extraction. Polystyrene foam is based on
several petroleum derivatives. Petroleum derivatives comes from crude oil
extracted from the earth. That process of extracting these materials from
the earth produces waste, some of which is now coming under increasing
scrutiny in the United States because of its hazardous nature, so-called
oil field waste; at that point of extraction there are problems associated
with the mining or extraction of petroleum chemicals, crude oil.
Once crude oil has been extracted, it is necessary to crack it, to split it
into various components, then subsequently to recombine various products in
controlled reactions; so that in manufacturing polystyrene foam, you need
to rely on certain chemical precursors, benzene or ethyl benzene. From that
point, styrene, and from there you create polystyrene.
The processes are very technical to describe and they are encompassed in a
variety of literature, particularly literature associated with food
packaging. The Encyclopedia of Food Packaging is an example of such. Page
540 is the page that refers to the variations in the manufacture of foam.
It refers to different types of foam packaging that are also elaborated in
other materials that are in the McToxics fact pack. It describes with some
clarity in a brief sense the nature of manufacturing of foam.
The manufacturing process of styrofoam produces several wastes, identified
in research conducted by the Federal Government in 1987, Minimization of
Hazardous Waste Report (1986 October).
No. 4 on that list is ethylene
CCHW's research showed that Ethylene and Benzene were chemical precursors
in the manufacture of polystyrene, so with this kind of report it was
possible to identify styrofoam food packaging as a product related to the
manufacturing process so that large amounts of hazardous waste were
generated in the manufacturing process of this type of material.
Benzene is a known human carcinogen; it has been linked to leukemia. The
Federal Government has done several studies, and a variety of literature
has identified it as such. It is what you might say common knowledge within
the United States public policy process that benzene has these properties
and these health consequences, when people are exposed to it. Benzene is
also a disposal problem and must be treated as a hazardous waste.
There have been studies of the implications for working conditions inn the
production of polystyrene. During the 1980s, the executive branch of the
Federal Government cut funding to the regulatory agencies, the
Environmental Protection Agency, the Occupational Safety and Health
Administration, particularly in the area of inspection. It became more
difficult for the inspectors to cover the number of facilities they needed
to cover. There are several studies that have documented this. There are
some studies that have documented this pattern in Great Britain.
On July 5, 1990, the Arco polystyrene plant in Texas provided an example of
volatility in the production process for polystyrene. It blew
up, and 17 employees were killed in that accident. Then the government
found that there were no violations -- the corporation agreed to pay a
penalty, but denied any guilt related to problems associated with their
safety procedures and so forth. The members of the families of the workers
testified that the workers at the plant "Lived with the fear of losing
their jobs if they refused to work" under unsafe conditions. It is also
noted that the explosion created a shortage of foam in the marketplace
because it was such a large manufacturing facility.
To create a foam package, it is necessary to blow gas into the foam, into
the polystyrene itself, so that it will become lighter and will have
certain properties that are desirable in the foam food package itself. To
be specific, early in the campaign in 1987 the Vermonters Organized for
Clean Up targeted McDonald's use of foam based in part on the fact that the
foam food package blowing agent, CFC, or chloro-fluorocarbon, caused damage
to the ozone layer. On August 1 of that year the Vermonters Organized for
Clean Up acted and picketed restaurants in Vermont. Five days later, in
concert with several manufacturers, McDonald's announced that they were
going to no longer use or they were instructing their suppliers to no
longer use CFC agents in the manufacture of their foam food packages.
The chemical in question is HCFC-22. Before January 27, 1988 the chemical
HCFC-22 was officially known as CFC-22. It was part of the CFC family. In
a letter dated January 27, 1988 from the EPA office on air and radiation
stated: "Somewhere along the way, some group hit on a nifty solution. They
simply changed the name of one CFC. Instead of continuing to call it
CFC-22, as they had for half a century, they renamed it 'HCFC-22'. Voila!
They had their cake and ate it too."
"In a letter dated January 27, 1988 and addressed to the plastic-foam
industry's Washington based trade group, the EPA Office of Air and
Radiation sought to 'clarify' the move to CFC-22: 'Chemicals such as
HCFC-22 contain hydrogen . . . Thus HCFC-22 is not technically a CFC.'"
So before that is it correct to say that the EPA had considered that HCFC
or CFC-22, as it was and became HCFC-22, had been restricted or banned
under the previous legislation.
The packaging, the plastic packaging trade groups were looking for a means
to substitute alternate blowing agents for CFCs, because it was becoming
increasingly apparent by actions like the group, Vermonters Organized for
Clean Up, and the growing literature circulated regarding the coming
campaign, that it was necessary to recognize or in some way shift attention
away from the blowing agent CFC-22 because of its presumed qualities, in
that it damaged the ozone layer. It is a piece of "linguistic
detoxification." This substance, known as one thing for 50 years, now
became another thing, when it was suitable for the industry.
There was a substance called CFC-22 that was the same as HCFC-22s.
"Consumption of HCFC 22 increased at an average of 4 per cent a year even
before it was utilized as a substitute for - 11" - that is presumably the
CFC level - "or CFC-12 because of its hydrogen atom. It is not regulated
by the EPA or listed in the Montreal Protocol roster of chemicals to be
controlled. Consequently, as rate of use is bound to accelerate and with
it the total amount of ozone that 22 destroys.
That effect is not disputed. 'CFC-22 and HCFC-22 are the same chemical and
that chemical is capable of destroying ozone in the stratosphere' says
Michael Oppenheimer, a senior scientist with the Environmental Defense
Fund. Even the leading manufacturer Dupont agrees, says spokesperson Kathy
Forte, '22 HCFC and 22 CFC are the same'. The term 'HCFC' was not used
publicly until Jan. 5 1988, she says, and the name change was required to
'avoid confusion' because of CFC-22's hydrogen atom."
Then, we criticized the Environmental Defense Fund for joining with the
food packaging industry on the CFC issue, because we recognized -- we did
not know at the time that HCFC-22 was the same thing as CFC-22, but what we
did know is that the blowing agents still caused harm to the environment.
It was acknowledged to be less harmful to the environment than the other
types of CFC, but that the alternatives were not acceptable. The real
issue was the use of the foam package itself and not the blowing agent in
particular. That was just one component of the product.
We were critical of the Environmental Defense Fund for engaging in this
activity. After that, we contacted them following the publication of the
Washington Post article and asked them to explain what they had been
engaging in, and they responded. Those organizations wrote us letters and
responded. They described their ideas engaging in this press conference to
announce the phasing out of CFCs.
A document signed by several environmental organizations, concerning a
Washington Post article of December 1989, reads as follows: "Moore is
right" - Curtis Moore being the author of the Washington Post article -
"Moore is right to be incensed by McDonald's 'CFC-free' claim in its
placemat advertising, but he is wrong in implying that environmentalists
have sanctioned that claim. In our negotiations with the food packagers, we
specifically rejected any description of HCFC-22 as 'not a CFC', precisely
because it would mislead people."
He then says "it is still an ozone depleter and thus only an interim
solution," which is what McDonald's have said so far. In that process of
environmental groups sanctioning in some way that change, they specified
that industrialists, according to Mr. Doniger, that HCFC-22 should not be
described as "Not a CFC" precisely because it would mislead people.
In 1987, we were saying McDonald's should stop using foam food packaging
because substituting blowing agents was not going to solve environmental
problems associated with the food package, but was going to transfer the
problems to other levels of the stratosphere. Pentane, at a low level, as
a gas at the lower levels of the atmosphere, is a hydrocarbon that would
contribute to smog. It is identified as a greenhouse gas as a
hydrocarbon.
"As much as 50 to 60 per cent of polystyrene food containers are, in fact,
foamed with hydrocarbons, processors say; and many of McDonald's
food-packaging suppliers, including Mobil, the largest, use hydrocarbons."
Quote from a processor: "'A substantial portion of McDonald's containers
have been made with isopentane. That is why we are confident there will be
no problem in phasing out CFC-12'." The next paragraph in the middle of
it, the statement, the article continues: "Chief among the cost."
Conversion to hydrocarbons, however, carries with it costs that even the
largest processor might find formidable. Chief among these is the expense
of outfitting a plant to safeguard against the materials' flammability and
to contain their vaporous emissions. Processors who convert will need to
'explosion proof' electrical connections on their machinery, make special
provisions for storage of the chemical, and increase the number of fire
safety devices in their plants, users and suppliers of the chemicals say. "
It goes on: "Because hydrocarbon emissions are linked with low level
atmospheric pollution, processors must also have recovery systems in place
to vent fumes from the air. Hydrocarbon emissions are also subject to the
EPA's clean air standards, thus adding a regulatory dimension to the
chemical's use . . . In some parts of the US (notably southern California)
there is concern that hydrocarbons could be restricted if EPA prescribed
clean air goals for an area are not met." Clean air goals have been coming
into effect in various parts of the United States requiring that these
municipal areas come into compliance with clean air standards and because
of their smog problems they are not in compliance. These blowing agents,
pentane blowing agents, can cause smog.
A change of direction to pentane would have involved a great outlay of
capital cost to their suppliers.
McToxics Campaign History and Styrofoam Bans
McDonald's was identified by Grassroots groups as an extravagant user of
foam food packaging. These leaders were aware McDonald's was using the foam
food package primarily through the company's own promotional advertising
that called attention to the foam food package as a marketable component of
their product. McDonald's became known as the largest single user of the
styrofoam food package.
First McToxics Protests: Vermont
The original, first action by a local community group involved in the
McToxics campaign occurred on August 1, of 1987. I think that is a
significant date. On August 1, 1987 McDonald's restaurants in certain
communities in Vermont were picketed by local community activists from an
organization called Vermonters Organized for Clean Up.
Packaging Industry Fights Back as Companies & Communities Ditch Foam
A group of organizations associated with food packaging manufacture sued
Suffolk County, New York, to stop them from carrying out the foam ban.
Polystyrene Production, Hazardous Chemicals & Worker Safety
The scientific name for styrofoam is polystyrene foam. There are a variety
of polystyrene foams in use. One is for food packaging.
No. 5 on that list, polystyrene/ABS.
No. 6 is Benzene.
Linguistic Detoxification: HCFCs & CFCs are the same!
In 1978, a ban enacted by the United States Congress prohibited the use of
chloro-fluorocarbons as propellants in consumer products in aerosol sprays.
On August 5, 1987, McDonald's announced, "We required our suppliers to
switch to a non-CFC blowing agent." At the time of this pronouncement, the
manufacturers and McDonald's mentioned the substitution of a blowing agent
gas, which they said was not a CFC.
Environmental Defense Fund sells out McToxics Campaign
The statement of the McDonald's representative is dated in August 1987 and
the Environmental Defense Fund, along with other organizations,
environmental organizations, Natural Resources Defense Council and a couple
of other organizations, joined in a press conference with the manufacturers
and the trade group, the plastic packaging trade groups, to announce this
new change, this shift to an alternative blowing agent.
Save the Ozone Layer: Create Smog?
McDonald's also used pentane as a blowing agent in the United States. The
issue with pentane is associated with its hazards in the manufacturing
process. Many foam package producers would have difficulty switching to
the use of pentane because of considerable up front cost associated with
the electric fireproofing or explosion proofing, their electrical circuitry,
to avoid problems associated with the flammability of pentane. It is also
noted in other documents that pentane is extremely difficult to contain in
the manufacturing process, and that is why it is necessary to explosion
proof electrical circuitry. This substance poses workplace hazards in its
usage and, in addition, these substances, when they escape from the
manufacturing process, contribute to ground level ozone problems. Those are
issues we raised in 1987. At the time McDonald's said they would no longer
use the CFC blowing agents in their foam food packaging.