Los Angeles County Counsel Dawyn Harrison sued PepsiCo and Coca-Cola on October 30, 2024, alleging responsibility for the impacts of plastic packaging littered in Los Angeles County. The next day, a New York State judge dismissed a similar suit against PepsiCo and its Frito-Lay subsidiaries, which New York Attorney General Letitia James filed in 2023.

Although the New York ruling is not binding on California courts, its flat rejection of the Attorney General’s claims preview challenges the California case – and similar cases, like the one brought by California Attorney General Rob Bonta against ExxonMobil – may face.

These two recent developments in the rapidly evolving area of plastics litigation illustrate the growing trend of states and municipalities pursuing plastic packaging producers in court, while also highlighting the significant headwinds those plaintiffs may face.

Los Angeles County takes legal action over plastic packaging companies

The Los Angeles County lawsuit, which seeks various forms of equitable and monetary relief, claims that responsibility for the environmental impacts of plastic pollution affecting the state rests in part with packaged food and beverage companies that market their packaging as recyclable. The complaint alleges that such marketing is inherently misleading, because the companies know that a significant portion of plastic packaging is not recycled and ends up as litter that results in environmental impacts.

The complaint details the impacts that consumer advocates increasingly target, which include fragmentation and degradation of packaging into microplastics. The complaint also argues that recycling and other efforts at creating a circular economy are not solutions, as they may distract consumers and businesses from reducing plastic use and investing in sustainable materials.

Various studies have found microplastics in bottled water. However, the Food and Drug Administration (FDA) has concluded that currently available evidence does not demonstrate that the amount of microplastics and nanoplastics commonly found in food causes health hazards that warrant regulation.

The case is now pending before Los Angeles County Superior Court Judge Barbara A. Meiers.

New York court dismisses Attorney General’s public nuisance suit against PepsiCo

In New York the following day, Erie County Justice Emitio Colaiacovo granted PepsiCo’s motion to dismiss Attorney General James’ similar suit, which alleged that PepsiCo and its subsidiaries had created and maintained a public nuisance by producing, marketing, and selling products in plastic packaging that ends up as pollution in the Buffalo River.

Similar to the Los Angeles case, the New York Attorney General’s complaint alleged that PepsiCo and its subsidiaries had violated state consumer fraud laws by marketing their plastic packaging as recyclable, and by failing to warn consumers about the risks of plastic products to the environment and human health.

Justice Colaiacovo dismissed the complaint in its entirety, finding that PepsiCo and its subsidiaries could not be held liable for the actions of third parties who discard their products improperly or illegally, and that the Attorney General had not shown that PepsiCo and its subsidiaries had control over the disposal of the plastic waste, or had created or contributed to the alleged nuisance.

The court ruled that imposing civil liability against companies in such a case would seem “contrary to every norm of established jurisprudence.” The court further concluded that the Attorney General had not shown that PepsiCo and its subsidiaries had made any materially misleading statements or omissions that were likely to mislead consumers, or that they had any duty to warn consumers about the potential environmental or health impacts of their products.

Implications and takeaways

The New York case highlights the potential difficulties of advancing novel theories in courts to hold packaging producers responsible for plastic litter in the environment. It remains to be seen whether the Los Angeles County suit will fare similarly. Regardless, one difficulty the Los Angeles County Counsel will likely face, as the New York decision highlights, involves proving causation where members of the public, not the companies, are the “litterbugs.”

Further, both New York State and Los Angeles County have policies expressly promoting recycling – policies that cannot function if companies, fearing liability, stop marking recyclable products accordingly. That tension may be a reason for Justice Colaiacovo’s reference to legislative and executive prerogatives as the appropriate source of regulation in this area.

Plastics litigation is evolving as more state and local governments, environmental groups, and consumers seek judicial solutions. The fast pace of related scientific, technological, and policy developments in this field remains dynamic. Businesses involved in the production, distribution, or use of plastic products are encouraged to closely monitor plastics litigation trends to assess their potential exposure and adopt appropriate measures to mitigate their legal risks.

For more information about plastics litigation and regulation, and the related liability risks, please contact the authors.