Last month, New York Attorney General Letitia James filed a complaint against PepsiCo alleging that the company misled consumers about the usefulness of recycling and that the company’s use of single-use plastics constitutes a public nuisance and a public health concern. At the center of the complaint is the health of the Buffalo River which flows through New York. The Complaint states that:
“As a result of PepsiCo’s and others’ persistent manufacturing, production, distribution, and sale of beverages and snack foods in single-use plastic packaging, single-use plastic items have become a dominant form of pollution in urban watersheds such as the Buffalo River.
PepsiCo’s products are a particularly significant contributor to the plastic pollution affecting the Buffalo River, and PepsiCo’s single-use plastic packaging is found in abundance along the shores of the Buffalo River and its tributaries.”
In 2022, the New York AG conducted a survey of waste recovered from 13 different sites along the Buffalo River. Of the 2,621 pieces of waste collected, PepisCo was responsible for 17.1%. The Complaint:
- Alleges that this plastic pollution contributes to the levels of microplastics found in the river which are hazardous to human and animal health;
- Alleges that PepsiCo has made misleading statements about the efficacy of plastic recycling and the company’s efforts to combat plastic pollution;
- Asks the court to direct PepsiCo to make reasonable best efforts to identify and remediate plastic pollution as well as label their products and warn their customers about the dangers of plastic pollution; and
- Seeks compensatory damages for the harm done to the Buffalo River.
This lawsuit could have wide-ranging implications if it is successful and could create a blueprint for state AGs looking to rein in plastic pollution. The McDonald’s Corporation and the Hershey Company trail behind PepsiCo in pollution to the Buffalo River, but could find themselves subject to a similar suit if the state succeeds against PepsiCo. The suit could potentially reach more companies and more jurisdictions as well. Given the vast amount of plastics packaging used by companies and tossed away by consumers with resulting impacts on natural resources, human and animal health, plastics litigation of this kind could become a financially-material risk.
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