Plastic Pollution Case Dismissed

In an important decision regarding plastic recycling and disposal, the New York Supreme Court has dismissed the NY Attorney General's lawsuit against Pepsico for allegedly contributing to plastic pollution in New York waterways.  People of the State of New York v. Pepsico, Inc. et al., No. 814682/2023 (NY Supreme Court, Oct. 31, 2024).  The high-profile case is one of several currently pending in which Plaintiffs allege that makers of single-use plastic containers are responsible for contributing to plastic pollution.

Here, the Attorney General of New York sought to hold Pepsico liable under two theories: public nuisance and false advertising law.  In a strongly-worded opinion, the New York Supreme Court rejected both theories.

First, with respect to the Plaintiffs' nuisance law allegations that the Defendants failed to abate the harm of plastic pollution by increasing their use of plastic packaging alternatives, the Court agreed that the disposal of waste is not in the Defendants' control and as such, they cannot be held responsible for improper disposal choices engaged in by others.  To the extent that the Plaintiffs seek to require the Defendants to reduce the use of plastic packaging, that decision is a Legislative and not a Judicial prerogative.  Analogizing this set of allegations to cases in which firearms were alleged to be a public nuisance, the Court held that the product at issue – beverages in single-serve plastic containers – is not unlawful and is used by many businesses in addition to Pepsico:  “Either this is a pervasive problem and all offenders have contributed to this ‘public nuisance’ or else it is nothing more than selective prosecution based on a naïve theory.”  The court went on to hold that there was no legal duty for Pepsico to reduce their use of plastics.

The Plaintiffs' false advertising theory fared no better.  In the Complaint, the Attorney General had alleged that Pepsico engaged in deceptive conduct by failing to warn about the dangers of plastic pollution.  The Court rejected this allegation, holding that the Attorney General had failed to plead that Pepsico engaged in materially misleading acts.  The Court reasoned that there is no affirmative obligation that required Pepsico to provide a warning.  

In a scathing final conclusion, the Court wrote:

“While I can think of no reasonable person who does not believe in the imperatives of recycling and being better stewards of our environment, this does not give rise to phantom assertions of liability that do nothing to solve the problem that exists.  This is a purely legislative or executive function to ameliorate and the judicial system should not be burdened with predatory lawsuits that seek to impose punishment while searching for a crime.  The Plaintiff's proposed use of the judicial system to punish select purported offenders for what she believes to be a righteous cause risks transforming the judiciary into an arm of the legislature, or at very least a passive partner in expanding duties that strain the bedrock of well-established law for policy purposes.”