What You Need to Know
- Key takeaway #1State AGs allege false advertising and deceptive business practices, as well as public nuisance.
- Key takeaway #2Different recycling capabilities in different states may require differentiating advertising claims.
- Key takeaway #3State AGs are voicing skepticism of “advanced recycling” as a solution to plastic waste.
Plastic pollution is a growing concern worldwide, and State Attorneys General increasingly turn to litigation to address this issue. These lawsuits tend to focus on alleged deceptive advertising and misleading statements, but sometimes include public nuisance claims to address alleged injuries to the environment and public health. Broadly, the actions of State Attorneys General target companies directly for the products they sell and the claims they make to sell them, de-emphasizing consumer choice as a driver of these harms.
California Litigation
On September 23, 2024, California Attorney General Rob Bonta filed a suit, alleging that a top fossil fuel company misled consumers about recyclability to encourage the purchase of single-use plastic products. The fossil fuel company’s public response highlights the complex interplay of government, corporate, and individual actions that underlie the California litigation. Attorney General Bonta’s lawsuit represents the most aggressive in a series of recent actions by State AGs to regulate the plastic industry through litigation, accusing this company of intentional, decades-long efforts to deceive the public and seeking sweeping injunctive relief and substantial civil penalties.
California Attorney General Bonta’s lawsuit alleges that, beginning in the 1970s, recycling was not a feasible solution to plastic waste and pollution, but the defendant company nevertheless exaggerated the recyclability of plastic products and promised “lofty plastic recycling targets that they knew were unachievable.” The suit alleges that this fossil fuel company remains engaged in an ongoing, decades-long efforts to deceive consumers and lawmakers about the harm of plastic pollution and the efficacy of plastic recycling in order to maintain demand for single-use plastics. The suit seeks court orders for the company to stop making allegedly misleading claims about the recyclability of plastics, and for the defendant company to establish and contribute to an abatement fund to address the public nuisance caused by the proliferation of single-use plastics.
Attorney General Bonta’s recent action relies on nuisance, natural resources, water pollution, false advertising, and unfair competition laws. It comes on the heels of a June 2024 lawsuit filed by AG Bonta against several of the world’s largest fossil fuel companies and the American Petroleum Institute (API). That suit alleges that these companies engaged in false advertising and misleading public statements about the environmental impacts of their products, including plastics.
Both lawsuits seek disgorgement of profits under California AB 1366 for alleged violations of California’s Unfair Competition Law and False Advertising Laws.
Other State Attorneys General Litigation
Connecticut and Minnesota
In June 2022, Connecticut Attorney General William Tong sued Reynolds Consumer Products, Inc., under the Connecticut Unfair Trade Practices Act. Attorney General Tong alleged that the company knew its Hefty brand “recycling” trash bags were not recyclable in Connecticut but advertised them as such. That same month, Minnesota Attorney General Keith Ellison filed a similar lawsuit against two major retailers for alleged violations of the Minnesota Consumer Protection Act. Attorney General Ellison accused both companies of deceiving Minnesota consumers by marketing Hefty and Great Value brand plastic bags as “recycling” bags, even though the bags were not recyclable in Minnesota.
Both complaints alleged that any “recycling” bag entering a recycling stream at a recycling facility could cause machinery malfunctions, fires, and unsafe conditions for workers who must manually remove the bags. The complaints further allege that recyclable items placed in these bags cannot be recycled because of the environmental and health risks that opening and sorting through the bags pose to workers, such that using these “recycling” bags undermines the consumer’s intent to recycle.
In August 2023, Reynolds informed the Connecticut court that it had made changes to its packaging, including removing an image of a blue recycling truck and the chasing-arrows symbol. The company also added the wording: “This bag is not recyclable. This bag is designed for use in participating program areas only—contact your local municipality or recycling center to confirm acceptance.” The litigation is ongoing.
In August 2024, both major retailers agreed to stop the sale of “recycling” bags in Minnesota for two and a half years, stop using the term “recycling bags,” and instead clearly state on the packaging that “these bags are not recyclable.” Defendants also agreed to jointly pay $216,670 in disgorged profits, state attorneys’ legal fees, and other costs. Reynolds also committed to develop and enforce anti-greenwashing training and to establish a review process for marketing claims.
New York
In November 2023, New York Attorney General Letitia James filed a lawsuit against PepsiCo for public health and environmental harms arising from single-use plastic production in New York. The lawsuit alleges that PepsiCo substantially impairs public health in Buffalo, fails to warn consumers about the potential health and environmental risks of its single-use plastic packaging, and misleads consumers about its efforts to combat plastic pollution.
Attorney General James alleges that PepsiCo’s operations create a public nuisance and that the company has made misleading statements about its efforts to reduce the use of non-recycled (virgin) plastics. The suit seeks a court order directing PepsiCo to take reasonable steps to abate the nuisance, add warning labels on single-use plastic items, and forbid the sale of any product that lacks such a warning. The lawsuit also seeks restitution or civil penalties for deceptive acts under the New York General Business Law and disgorgement of profits.
Following the AGs’ Example
In June 2024, the City of Baltimore, MD, filed a lawsuit against PepsiCo and other major single-use plastic producers like Coca-Cola and Frito Lay, seeking to recoup the costs of cleaning up plastic pollution. This lawsuit echoes the claims in Attorney General James’ litigation, and indicates that other public officials may follow the example set by these state AGs.
Other State Attorneys General Activity
Plastics Forum
Connecticut Attorney General William Tong is co-sponsoring a Plastics Forum on September 26-27, 2024, in New Haven, CT. The forum seeks to bring together stakeholders to discuss the challenges and solutions related to plastics pollution. Over half a dozen state Attorneys General will attend the forum, alongside industry experts, lawyers, and academics. This forum is another example of the increased discussion and attention that state AGs are placing on the plastics industry.
Safer Choice Standard Program
In January 2024, California Attorney General Rob Bonta, along with a coalition of 12 state Attorneys General, submitted a comment letter supporting the EPA’s proposed revisions to the federal Safer Choice Standard program. The proposed revisions aim to strengthen the requirements that products and their ingredients must meet to use the EPA’s Safer Choice Label or Design for the Environment (DfE) logo.
The Attorneys General support the EPA’s proposed revisions and urged the Agency to exclude products with plastic primary packaging from using the label and logo. They recommended that the EPA should exclude packaging with recycled content obtained from “chemical recycling” when setting standards based on a minimum percentage of recycled content. Chemical recycling, also known as “advanced recycling,” involves using heat or solvent-based processes to break plastics down into forms that can be recaptured and remanufactured into new products. The letter asserts that “86 to 99% of the plastic waste used in advanced recycling is typically destroyed, and plastic waste can contain harmful impurities, including arsenic, cadmium, lead, mercury, and per- and polyfluoroalkyl substances.”
Conclusion
State Attorneys General are increasingly using litigation to regulate the plastics industry. Lawsuits alleging deceptive advertising and misleading statements focus on the alleged harm of undermining consumer intent to make environmentally friendly purchases, rather than harms caused by plastic products themselves. Some of these suits underscore the importance of conforming advertising claims to the legal requirements in each state, as what is “recyclable” in one state may not be in another. Public nuisance claims more directly address the environmental effects of plastic production, and if successful, potentially create more difficult compliance challenges, which implicate not only the language used on promotional materials and labeling but also how companies conduct their operations.
As consumer aspirations around recycling outpace what is technologically feasible, and plastic production and related environmental effects continue to accelerate, litigation and regulatory advocacy by state Attorneys General will continue to shape the future of plastic use and recycling. Crowell’s State AG team offers insight based on years of experience with these law enforcement offices and the companies they regulate, and can help businesses build strategies that limit the risk posed by increased plastics litigation.
For further information, please contact:
Toni Michelle Jackson, Partner, Crowell & Moring
tjackson@crowell.com
