Plastics Litigation Tracker

Allegations: Plaintiffs, a class of consumers who purchased Defendant's product, "Evian Natural Spring Water" bottled water, brought this action alleging that Defendant's labeling and packaging falsely misled consumers to believe that the manufacturing of the bottles was "sustainable," "carbon neutral," and "did not leave a carbon footprint." Plaintiffs raised the following claims: (i) violation of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civil Code §§ 1750, et seq., (ii) violation of New York General Business Law (“GBL”) § 349, (iii) violation of GBL § 350, (iv) breach of express warranty, (v) breach of implied warranty, (vi) unjust enrichment, and (vii) fraud. In their complaint, Plaintiffs also argued that even if Defendant construes "carbon neutral" to mean that the carbon emissions created during the production of the plastic water bottles are "offset" by the "carbon credits" purchased by Defendant, such a representation would still be false, because "organizations Defendant works with that are the basis for its 'carbon credits' do not currently or actually reduce CO2 emissions, and thus do not 'offset' the CO2 emissions created by Defendant's production of the product in any manner." Plaintiffs sought: (i) an order certifying the class; (ii) an order declaring that Defendant's conduct violates the statutes listed in the complaint; (iii) an order finding in favor of Plaintiffs on the grounds listed in their complaint; (iv) compensatory, statutory, and punitive damages; (v) prejudgment interest in all amounts awarded; (vi) restitution; and (vii) attorney's fees. Filed on 10/13/2022. See complaint here.

Status: This case is pending. On January 5, 2023, Plaintiffs filed their first amended complaint, which includes the same claims raised in Plaintiff's original complaint, but adds an additional claim: that Defendant's misrepresentation that its products were "carbon neutral" also violated Mass. Gen. Laws Ch. 93a. On April 27, Defendant filed a motion to dismiss Plaintiff's first amended complaint, as well as a memorandum of law in support of its motion. On the same day, Plaintiffs filed a memorandum of law opposing Defendant's motion to dismiss. On January 10, 2024, the U.S. District Court for the Southern District of New York granted in part and denied in part Defendant's motion to dismiss. The court granted Defendant's motion to dismiss Plaintiffs' claims for (1) violation of GBL § 349; (2) violation of GBL § 350; and (3) breach of implied warranty. It dismissed these claims without prejudice. The court also denied Defendant's motion to dismiss Plaintiffs' claims for (1) violation of Chapter 93A; (2) violation of CLRA; (3) breach of express warranty; (4) unjust enrichment; and (5) fraud. The court explained that because Plaintiffs' first amended complaint was the first complaint for which motion practice occurred, the claims it dismissed are deemed dismissed without prejudice and the parties are granted leave to file amended pleadings. Specifically, the court granted Plaintiffs leave to file a second amended complaint by February 2, 2024, consistent with the court's January 10 order. The court advised Plaintiffs that the second amended complaint would replace, not supplement, the first amended complaint, and so any claims that Plaintiffs wish to pursue must be included in, or attached to, the second amended complaint. It also noted that should Plaintiffs file a second amended complaint, Defendant must answer or otherwise respond by March 4, 2024. Finally, it explained that should Plaintiffs fail to file a second amended complaint within the time allowed, those claims that were dismissed without prejudice will be deemed dismissed with prejudice. On January 30, the parties filed a joint letter seeking an extension of time to complete motions for partial reconsideration of the court's order denying in part and granting in part Defendant's motion to dismiss. The court granted the parties' request on January 31, and ordered that motions are due by March 27. In its order, the court also stayed the deadline for Plaintiff's second amended complaint until the court issues a decision on the motions. The parties filed their motions on March 27.

Allegations: Plaintiff, the State of New York, led by its AG Letitia James, brought an action against Defendants PepsiCo, Inc., Frito-Lay, Inc., and Frito-Lay North America, Inc., raising four causes of action: (1) public nuisance; (2) strict products liability: failure to warn; (3) violation of New York General Business Law § 349; and (4) repeated and persistent illegality in violation of New York Executive Law § 63(12). AG James seeks declaratory, injunctive, and monetary relief for Defendants' failure to remedy harms and abate the public nuisance caused by its continued manufacturing, production, marketing, distribution, and sale of vast quantities of single-use plastic packaging. AG James argues that PepsiCo's single-use plastics "have become a dominant form of pollution in urban watersheds such as the Buffalo River," far exceeding any other source of identifiable waste found along the shorelines of the river and its tributaries. She explains that PepsiCo's single-use plastic products and packaging harms wildlife and interferes with the public's ability to use the river, and that microplastics and nanoplastics -- created when these single-use plastic items fragment into smaller pieces of plastic -- threaten freshwater ecosystems and human health. AG James states that microplastics have been detected in the City of Buffalo's drinking water supply and in popular game fish species in the river commonly consumed by the Buffalo community. She also argues that PepsiCo made misleading statements about the efficacy of plastic recycling and its efforts to combat plastic pollution, and that PepsiCo failed to warn consumers and the public about the risk of harm from its single-use plastic packaging. Filed 11/15/2023. See complaint here.

Status: This case is pending. This case was originally filed in the New York Supreme Court, Erie County, but on December 19, 2023, PepsiCo filed a motion requesting that the case be assigned to the New York Commercial Division. The motion was granted on January 25, 2024, and the case was assigned to the Commercial Division. The parties will meet for a status conference on July 12.

Allegations: Plaintiffs, David Swartz, Cristina Salgado, and Marcelo Muto, brought a class action against Coca-Cola Co., Bluetriton Brands, Inc., and Niagara Bottling, LLC (plastic bottle producers), seeking an injunction precluding the sale of plastic bottled water, unless the products' packaging and marketing are modified to remove "100% recyclable" and to disclose currently-omitted facts about their recyclability. Plaintiffs also sought damages for the difference between the price that consumers paid for the products and the price that they would have paid but for Defendants' misrepresentations. Plaintiffs alleged that Defendants' marketing violated California's public policy on environmental marketing claims, the Federal Trade Commission Green Guides, and the California Consumers Legal Remedies Act because the "100% Recyclable" marketing was false. Filed 6/16/21. See complaint here.

Status: Pending. On September 27, 2021, separate motions to dismiss were filed by each defendant: Coca-Cola Co., Bluetriton Brands, Inc., and Niagara Bottling, LLC. On November 2, the court issued an order directing Defendants to file a single, consolidated motion to dismiss and/or sever. It terminated the three motions as moot. On March 24, 2022, Plaintiff filed a consolidated amended complaint. On April 22, Defendants filed a consolidated motion to dismiss. Plaintiffs filed an opposition to Defendants' motion on May 13. Defendants filed a reply on May 27. On November 18, the court granted Defendants' consolidated motion and dismissed Plaintiffs' consolidated amended complaint. It found that Plaintiffs had failed to meet their "initial burden of pleading 'factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged' as informed by 'judicial experience and common sense.'" The court explained that reasonable consumers would not believe that each component of plastic bottles bearing the language "100% Recyclable" on their packaging would always be recycled and made into new bottles; instead, they would believe that the bottles were capable of being recycled. It also found that Plaintiffs' characterization of "recyclable" was inconsistent with the Federal Trade Commission's Green Guides definition of the term. Finally, it stated that Plaintiffs may file an amended complaint by December 9, 2022. On December 9, Plaintiffs filed a first amended consolidated complaint. On December 19, the court issued an order directing Defendants to respond to Plaintiffs' first amended consolidated complaint by January 9, 2023, or to file a motion to dismiss by January 30. On January 9, Defendants filed a motion to dismiss Plaintiffs' first amended consolidated complaint. On July 27, the court granted Defendants' motion and dismissed Plaintiffs' first amended consolidated complaint. It stated that although Plaintiffs' interpretation of "100% Recyclable" was more reasonable in this complaint than in their earlier complaints, Plaintiffs still do "not plausibly allege that defendants' recycling allegations are actionable." The court explained that Plaintiffs failed to provide facts in their complaint supporting their allegations that the bottles are not "100% recyclable in their entirety" because "a substantial majority of recycling programs in California do not recycle the polypropylene (‘PP’) and high-density polyethylene (‘HDPE’) bottle caps and the biaxially oriented polypropylene (‘BOPP’) plastic labels on the bottles." The court also noted how the Green Guides permit marketers to exclude "minor incidental components"--including plastic bottle caps and labels--from their claims concerning a product's recyclability. Finally, the court stated that Plaintiffs may file an amended complaint by August 17. On August 17, Plaintiffs filed an amended complaint. Defendants' filed a joint motion to dismiss on September 22. Plaintiffs filed a response and opposition on October 20, and Defendants' filed a reply on November 3. On December 1, the court issued an order explaining that Defendants' motion to dismiss was suitable for a decision without having an oral argument. Therefore, the hearing that had been scheduled for December 7 was vacated. The court has not yet ruled on Defendants' motion.

Allegations: Plaintiff, Darryl Keith Rosencrants, brought a securities class action against Danimer Scientific, Inc. (a company that produces a biodegradable plastic alternative) and its officers, seeking damages under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Plaintiff alleged that Defendants violated federal securities law by making false and misleading statements about the company's product, including by overstating the product's biodegradability. Filed 5/14/2021. See complaint here.

Status: Appeal pending. On May 31, 2022, Defendant filed a motion to dismiss. The case was reassigned to a new judge in January 2023. On October 2, 2023, the court granted Defendant's motion to dismiss. On October 27, Plaintiff filed a notice of appeal in the U.S. Court of Appeals for the Second Circuit.

Allegations: Plaintiffs, an environmental group, filed an action against the U.S. Army Corps of Engineers and multiple U.S. Army Corps employees. Defendants had authorized commercial aquaculture operations in tidelands throughout Washington, including Puget Sound and Willapa Bay, under the 2021 issuance of Nationwide Permit 48 (2021 NWP 48) and through Letters of Permission (LOPs) under the Rivers and Harbors Act. Plaintiffs argued that the permits must be invalidated and that Defendants' actions violated the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Rivers and Harbors Act (RHA), and the Administrative Procedure Act (APA), because the approved practice could result in a complex variety of plastics (ranging from large plastic fishing gear, to microplastics, and more) being introduced into the waterways (among other, non plastics-related claims). Filed 12/20/21. See complaint here.

Status: Pending. On April 26, 2022, Plaintiffs filed a first amended complaint, followed by a second amended complaint, on June 10. On July 25, Defendants filed a motion to dismiss Plaintiff's second amended complaint's fifth claim, which had sought to vacate and enjoin en masse the use of LOPs to authorize aquaculture activities in Washington. Defendants argued that Plaintiffs had failed to state a claim under the APA because the statute only allowed for challenges to specific final agency actions, rather than broad programmatic challenges. Defendants also argued that Plaintiffs' claim should be dismissed because the court lacked subject matter jurisdiction over the claim. On February 13, 2023, the court granted Defendants' motion and dismissed Plaintiff's fifth claim without prejudice. On June 28, Defendants filed an unopposed motion for voluntary remand. There, Defendants stated that they intended to propose revoking the applicability of the 2021 NWP 48 in Washington State, and accordingly, were also seeking the associated dismissal of Plaintiffs' remaining claims (all concerning 2021 NWP 48) without prejudice. Defendants also noted that Plaintiffs had informed them that Plaintiffs intended to move to further amend their complaint to add a new claim regarding the LOPs. On October 5, the court granted Defendants' motion. On October 24, Plaintiffs filed their third amended complaint, where they argued that activities performed under the LOPs issued by Defendants have "significant individual or cumulative impacts on the environmental values," but do not discuss plastic pollution. 2021 NWP 48 will not expire until March 14, 2026, and the U.S. Army Corps of Engineers has not yet revoked the applicability of this NWP in Washington. Plaintiffs filed a fourth amended complaint on February 1.

Allegations: Plaintiff, an environmental non-profit, alleges that Gelson's Markets continues to sell non-recyclable plastic grocery bags to consumers despite a California law requiring that all plastic reusable grocery bags be recyclable. Plaintiff seeks an order enjoining Defendant's unlawful conduct. Filed 6/3/2022. See complaint here.

Status: Settlement pending. On October 18, 2023, Plaintiff and Defendant entered into a settlement agreement, whereby Defendant agreed to stop purchasing plastic bags for resale by November 1, 2023, and to stop selling or distributing plastic bags in California by January 31, 2024. Defendant also agreed to remove its in-store drop-off bins for plastic recycling, by December 31, 2023. A settlement hearing is scheduled for June 12, 2024.

Allegations: Plaintiff, a non-profit dedicated to ending plastic pollution, alleges that Defendant continues to sell non-recyclable plastic bags despite the California law banning the sale of non-recyclable plastic bags. Plaintiff seeks an order enjoining Defendant's unlawful conduct. Filed 6/3/2022. See complaint here.

Status: Pending. On April 3, 2023, Plaintiff filed a motion for leave to file a second amended complaint, which was granted on June 22, 2023. The second amended complaint was filed on June 28, 2023, which listed Slater Bros. Markets, a plastic company, a plastic waste company, and a chemical testing company, as defendants. Plaintiff also included the California Department of Resources, Recycling, and Recovery, as a real party in interest. On July 31, 2023, the California Department of Recycling and Recovery filed a general denial. On March 15, 2024, Plaintiff filed a third amended complaint.

Allegations: Plaintiff represents a class alleging that Defendant, Walgreen Co., continues to sell non-recyclable plastic bags despite California law SB 270 banning the sale of non-recyclable plastic bags. Plaintiff seeks an order enjoining Defendant's unlawful conduct, as well as damages to compensate them for the deceptive practices. Filed 4/29/2022. See complaint here.

Status: Pending. On October 7, 2022, Walgreen Co. filed a motion to dismiss for lack of jurisdiction and failure to state a claim. On December 19, 2022, the court granted Defendant's motion to dismiss as to Plaintiff's cause of action concerning Defendant's alleged violation of SB 270, but denied the the motion on all other grounds. On August 10, 2023, the court issued a scheduling order, which set deadlines for filings and dates for litigation. According to the order, Plaintiff's motion for class certification was due by February 13, 2024. The court also ordered trial to begin on January 17, 2025. On March 12, Plaintiff filed a motion for class certification. Defendant filed its opposition and response on March 19. A class certification hearing will take place on June 11.

Allegations: Plaintiff, the State of Minnesota, led by its AG Keith Ellison, brought this case against Defendants Reynolds Consumer Products, Inc. and Walmart Inc., seeking injunctive relief for selling Hefty recycling trash bags that are advertised as recyclable, when they bags are made from low-density polyethylene plastic, which cannot be processed at recycling facilities. AG Ellison explains that when recyclable items are placed in these bags and brought to waste municipalities in the State, the bag and its contents are deemed unrecyclable. AG Ellison argues that Defendant's marketing of the bags defrauded and deceived consumers, because all recyclable items that consumers place into Reynolds and Walmart's "recycling" bags end up at a landfill and are not recycled, contrary to customers' intentions. AG Ellison also argues that Defendants knowingly misled consumers, explaining that Reynolds recently changed the language on their products, instructing consumers to contact their local waste municipalities and ask if they recycle the bags -- even though no facility in Minnesota accepts them. Filed on 06/06/2023. See complaint here.

Status: This case is pending. A settlement conference is scheduled for July 19, 2024, with trial set for September 16, if no settlement is reached.

Allegations: Plaintiff, a health non-profit, is seeking declaratory and injunctive relief to prevent and restrain Defendant’s from continuing to violate the Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate (“LCPFAC”) chemical substances. Plaintiff alleges that Defendant failed to submit a significant new use notice (SNUN) and for manufacturing the chemical without completing the requisite. Filed 12/27/22. See complaint here.

Outcome: Dismissed without prejudice. On January 18, 2023, Defendant filed a motion to dismiss, arguing that Plaintiff's citizen suit is barred by the Toxic Substances Control Act's "diligent prosecution bar" because the U.S. Department of Justice (DOJ) is already prosecuting a case against Defendant in the U.S. District Court for the Eastern District of Pennsylvania. Defendant explained that it had informed Plaintiff of this before Plaintiff filed its complaint. On April 6, 2023, the court granted Defendant's motion and dismissed the case without prejudice. The court explained that Plaintiff's proper recourse is to seek intervention in the U.S. action.