Breaking ground on November 15, 2023, New York Attorney General Letitia James initiated a landmark lawsuit against PepsiCo Inc. (PepsiCo), alleging the company’s single-use plastic packaging has caused harm to both the public and the environment.
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PepsiCo Plastic Pollution Lawsuit
On behalf of the People of the State of New York, the Attorney General alleges that PepsiCo products significantly contribute to high levels of plastic pollution along the shores of the Buffalo River. As such, the lawsuit states, “PepsiCo’s plastic packaging contaminates the river and public drinking water supplies, threatening public health, harming freshwater species, and endangering the ecosystem”. In 2022, a survey of the plastic pollution in the Buffalo River was conducted. It showed that PepsiCo is by far the largest polluter, with its identifiable plastic waste present in triple the amount of the next contributor (McDonald’s).
Legal Framework: Public Nuisance, New York General Business Law, and New York Executive Law
Public Nuisance: The lawsuit alleges that the PepsiCo’s plastic pollution is a public nuisance, interfering “with the public’s use and enjoyment of the Buffalo River and its environs”. New York law allows for public nuisance claims when conduct substantially interferes with public rights, morals, spaces, or the well-being of many individuals. The complaint refers to the New York State Constitution, which in November 2021 was amended to provide that “Each person shall have a right to clean air and water, and to a healthful environment”.
New York General Business Law (§ 349): It is also alleged that PepsiCo is in violation of New York General Business Law § 349. This section combats deceptive practices in commerce. The Attorney General can seek injunctions, restitution, and impose civil penalties of up to $5,000 per violation. It is alleged that PepsiCo has persistently given misleading statements and omissions regarding the harms caused by single-use plastic packaging.
New York Executive Law (§ 63(12)): Finally, Executive Law § 63(12) empowers the Attorney General to address persistent business illegality, covering violations of any state, federal, or local law or regulation. This underscores New York’s commitment to accountability for actions impacting public rights.
Plastic Pollution
To highlight the harms done by PepsiCo’s plastic pollution, the lawsuit cites several wide-ranging impacts to the public and to New York State. The Buffalo River is a source of drinking water for the city of Buffalo, New York. Microplastics, detected in the city’s drinking water supply and in fish species from Lake Erie and the Buffalo River, pose a direct risk to the local community. As humans consume these microplastics through contaminated food and water, the particles infiltrate our bodies, blood, and organs. Alarming health effects, including reproductive dysfunction, inflammation of the intestine, and neurotoxic impacts, can result from exposure to both microplastics and the chemicals they carry. The interconnectedness of plastic pollution, water sources, and human health underscores the urgency of addressing this environmental issue.
PepsiCo’s Misleading Statements and Failure to Warn
PepsiCo's awareness of plastic waste and its contribution to environmental issues has spanned decades. Since the 1980s, the company has acknowledged the "plastic pollution crisis" it plays a part in, expressing concern about potential environmental impacts. Despite its Chief Sustainability Officer recognizing the responsibility, PepsiCo continues the production of millions of metric tons of single-use plastic, with minimal recycling efforts. The company is aware of recycling limitations, particularly with non-recyclable snack food packaging and the limited recyclability of PET bottles. Despite available alternatives, such as refillable and returnable programs, PepsiCo has not widely deployed them in the New York market. On the contrary, PepsiCo has increased the use of virgin plastic every year. In 2022, the use of virgin plastic in its packaging increased by 11 percent. The company's misleading statements regarding plastic recycling efficacy and progress in reducing plastic production further compound the issue. Despite acknowledging that consumer perception influences purchasing decisions, PepsiCo's plastic packaging lacks warnings about its environmental impact, contributing to the plastic pollution crisis and potential harm to human health.
Aims of the Lawsuit
Attorney General James urges the court to compel PepsiCo to halt its contribution to the public nuisance in the Buffalo region, address and rectify the contamination it caused, and implement strategies to curtail the influx of PepsiCo’s plastic packaging into the Buffalo River. Additionally, the lawsuit aims to prohibit PepsiCo from selling or distributing any product in single-use plastic packaging in the Buffalo region without an adequate warning. Beyond cessation measures, the lawsuit pursues disgorgement, civil penalties, and restitution as remedies.
Previous and Ongoing PepsiCo Climate Litigation
The New York suit is not completely novel, as PepsiCo is also engaged in litigation in the State of California. This too is an ongoing public nuisance lawsuit related to plastic pollution, filed in 2020 by the Earth Island Institute against several companies, including PepsiCo.
In conclusion, the evolving landscape of climate litigation, exemplified by ongoing cases against PepsiCo, underscores the critical intersection of legal action and environmental responsibility. As public nuisance law becomes a more prominent tool in addressing plastic pollution, the outcomes of these cases hold the potential to shape corporate accountability and environmental practices.
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