Through the Austin corporations PlastiPure and CertiChem, founder and scientist George Bittner says he has made it his quest to create a safer plastic bottle.
The University of Texas neurobiology professor has raised millions of dollars in grants and private donations to develop an alternative to plastics made with chemicals that cause estrogenic activity, which some studies show has adverse health effects. In results published in the journal Environmental Health Perspectives in 2011, Bittner found the majority of plastic products — such as baby bottles and water containers — are produced with the potentially harmful compounds.
But in a civil lawsuit filed in January 2012, the Tennessee-based Eastman Chemical Co. is seeking unspecified advertising corrective fees from the two small businesses for trademark infringement, alleging they have exaggerated the presence of such chemicals in Eastman plastics, while PlastiPure has rolled out its own line of similar goods.
The debate, expected to play out over the next two weeks in an Austin federal court, is pitting science against marketing, and legal experts and scientists say it could have an impact on what is considered the industry standard for testing those types of products. But part of that will depend on what Eastman Chemical, which counts such big names as Rubbermaid and Thermos among its clientele, can prove before a six-member jury.
“It is pretty standard for companies to sue each other for false advertisement, especially in a down economy when every percentage of their market share matters,” said Rebecca Tushnet, a law professor at Georgetown University in Washington. “In this case the questions will be: What is the best scientific evidence, and what claims does it support?”
In court this week, attorneys for Eastman Chemical have said PlastiPure and its sister company CertiChem, which share office space and employees, have waged a media campaign against the Tennessee company in trade journals, news articles and press releases, making false or misleading statements based on a faulty study.
PlastiPure and CertiChem have only conducted their trials in vitro and not on mammals, which Eastman officials say is the only way to detect estrogenic activity.
But attorneys for the Austin corporations have argued that Eastman Chemical hasn’t carried out such animal testing on its own products and has only examined three of 11 chemicals in Tritan, its main plastic under contention. PlastiPure and CertiChem, they said, have applied stressors to common plastic products, such as Tritan, to detect whether they leach estrogen-like chemicals. The goods they analyzed had been exposed to heat, wear and radiation with the intent of emulating how consumers use the everyday commodities.
Tritan, which Eastman Chemical began developing in 2005, was launched commercially six years ago, just as consumer consciousness — and controversy — grew over the use of bisphenol A, or BPA, in baby bottles, toys and other children’s products.
BPA has been used since the 1960s in shatterproof plastic water bottles, food can linings and hundreds of other common items. But it leaches from plastic and mimics the estrogen hormone, and some studies have said it leads to changes in behavior in the brain, hurting growth rates, sexual maturity and learning abilities. It also has been linked to prostate and breast cancer.
Although the American Chemistry Council and some plastics manufacturers have cited research finding the additive isn’t dangerous to humans at low levels, Canada has banned it in baby bottles and some major U.S. stores, including Wal-Mart and Toys R Us, have announced they would stock only BPA-free baby products.
With the anti-BPA sentiment, Tritan — which doesn’t contain the additive and made its global premiere in 2007 at a trade show in Germany — was poised to fill a substantial portion of the market vacuum, according to testimony and records filed in U.S. district court. But a year later, PlastiPure debuted its line of bottles and began contacting the Tennessee company’s customers and potential clients, saying Tritan displayed estrogenic activity, Eastman Chemical attorneys said.
One example displayed before jurors by the attorneys Monday was an email from PlastiPure to Whole Foods warning of the chemicals in Tritan. In court documents, they point to a 2009 article from the American-Statesman that reads: “A number of big players, including Eastman Chemical Co., have begun making plastic without BPA, but PlastiPure said that’s not enough. The company said its patented resins are free of all estrogenic activity.”
“BPA is on everyone’s minds, but we’ve identified thousands of chemicals that contain estrogenic activity,” PlastiPure CEO Mike Usey told the Statesman at the time.
Outside the courtroom Tuesday, Bittner said the battle isn’t one that should be debated before a judge or a jury but in scientific journals.