Plastics Litigation Tracker

Allegations: Plaintiff, a consumer who bought foam cups, foam plates, party cups, and freezer bags marked “recyclable” from a 7-Eleven store in Chicago, brought this case on behalf of herself and a purported consumer class. The claims include (1) deceptive practices under the Illinois Consumer Fraud and Deceptive Business Practices Act, (2) breach of express warranty, and (3) unjust enrichment. The plaintiff alleged that the “recyclable” label is deceptive because the purchased products are made of plastic that is very unlikely to be accepted and reused by local recycling facilities. In addition, the foam plates and freezer bags lacked recycling designations known as Resin Identification Codes (RICs), which give recycling facilities the necessary information to sort the products. The plaintiff also alleged that the absence of the RICs was deceptive to consumers.

Status: In a September 13, 2022 order, the district court denied in part and granted in part 7-Eleven’s motion to dismiss the claims. First, the court found that the consumer had sufficiently alleged an injury-in-fact for standing in federal court as an individual and as a class representative (on behalf of consumers who suffered “substantially similar” injuries after relying on similar labels on 7-Eleven products). But the court found that the consumer had no standing to seek an injunction against 7-Eleven because there is a low probability she will be similarly misled in the future. Second, the court held that the consumer had stated a deceptive practices claim as to the lack of RICs on the products but not as to the “recyclable” labels. The court defined “recyclable” as “capable of being recycled”—not will be recycled—and determined that 7-Eleven had never represented anything about the likelihood of their products’ recyclability. The consumer’s “unrealistic” expectations were not sufficient to state a claim. In contrast, without the RICs, the plastic products (foam plates, freezer bags) cannot be separated or recycled, and so the consumer had sufficiently stated a deceptive practices claim related to the absence of RIC designations on those products. The decision also permitted the consumer’s breach of express warranty and unjust enrichment claims to go forward to the extent they related to the lack of RIC designations.

Allegations: Plaintiff, a consumer who purchased water bottles labeled "100% recyclable" (bottled by Niagara and sold by Costco), asserts several claims on behalf of a proposed class of New York consumers. The claims include (1) deceptive and unfair trade practices under NY General Business Law ("GBL") § 349, (2) false advertising under GBL § 350, (3) common law fraud, (4) breach of express warranty, and (5) unjust enrichment. The plaintiff alleged that Niagara's recyclability representations (stating that its bottles were "100% Recyclable") are false and misleading to consumers, as not all components of the bottles are made of recyclable material, and low recycling capacity in New York makes the other components effectively non-recyclable. Filed July 28, 2021.

Status: On August 5, 2022, the district court dismissed all of the plaintiff's claims with prejudice (other than the breach of express warranty claim). The court concluded that the plaintiff had confused recycling access with whether a product was actually recycled, and therefore failed to allege facts to show that Niagara had not complied with the FTC guidance, which was relevant to pleading both GBL claims. The court also concluded that the plaintiff failed to allege facts sufficient to show fraudulent intent (for fraud claim) or meaningfully distinguish its unjust enrichment claim from the other claims, which proved fatal. The plaintiff is now unable to file an amended complaint on these claims, with the exception of the breach of express warranty claim (which may be brought only on an individual basis in New York).

Allegations: Plaintiff, a customer who purchased single-serve plastic coffee pods made by defendant, asserts a single consumer claim under M.G.L. c. 93A § 9 (“Chapter 93A”) on behalf of a proposed national class of consumers. Keurig markets and labels the Pods as recyclable, but plaintiff alleges the Pods are not, in fact, recyclable as that term is defined under applicable Federal Trade Commission (“FTC”) guidance.

Status: On June 25, 2022, the plaintiff appealed the district court’s decision to strike the nationwide class allegations. The district court concluded that no such nationwide class could be certified under Rule 23 because Chapter 93A’s remedies do not extend to consumers who purchased the Pods outside of Massachusetts. This case is pending. See the appeal here.

Allegations: Plaintiff, Connecticut Attorney General, brought an action against Reynolds Consumer Products, Inc. alleging that the company falsely and deceptively marketed Hefty trash bags as “recyclable” despite knowing they could not be recycled in Connecticut recycling facilities, in violation of the Connecticut Unfair Trade Practices Act. The AG's office seeks injunctive relief, equitable relief, and civil penalties to redress injuries to Connecticut consumers from the defendant's business practices and product representations. Filed 6/14/2022. See the complaint here.

Status: Pending.

Allegations: Plaintiffs, environmental group, filed an action against the U.S. Army Corps of Engineers seeking to challenge a permit pertaining to shellfish aquaculture. The Plaintiffs argued that the permits "must be invalidated" because, in essence, the approved practice could result in plastics being introduced into the waterways in violation of the Clean Water Act and the National Environmental Policy Act.

Status: The district court awarded summary judgment to the plaintiffs. The 9th Circuit Court affirmed, holding that the data reviewed was insufficient (No. 20-35547). On December 20, 2021 the Coalition filed a second complaint in the Western District of Washington at Seattle. The complaint challenges the Corps’ failure to comply with (1) the National Environmental Policy Act (NEPA); (2) the Clean Water Act (CWA); (3) the Endangered Species Act (ESA); (4) the Rivers and Harbors Act (RHA); and/or (5) the Administrative Procedure Act (APA). As of June 10, 2022 the district court judge has granted plaintiffs’ motion to file a second amended complaint.

Allegations: Plaintiff, environmental organization, brought an action against BlueTriton Brands (formerly known as Nestle Waters North America) seeking injunctive relief against the Defendant trade practices and declarative relief in the form of an order holding the Defendant conduct to be unlawful. The Plaintiff alleged that the Defendant violated the D.C. Consumer Protection Procedures Act, arguing that the Defendant marketing is false and deceptive because the company portrays itself as sustainable and committed to reducing plastic pollution through its recycling targets while falling short of those targets and continuing its environmentally harmful practices. Filed 8/27/21. See the complaint here.

Status: On June 7, 2022, the Defendant's motion to dismiss was denied in superior court. Previously, the Defendant removed the case to federal court. The Court granted Plaintiff motion to remand and denied its request for fees and costs.

Allegations: Plaintiff, environmental organization, brought an action against Crystal Geyser Water Co. and other plastic bottle producers seeking compensatory and equitable relief for injuries sustained as a result of plastic pollution, which Plaintiff claimed to be a result of the dissemination of the Defendants' products. The Plaintiff also claimed that the Defendants misinformed consumers about how their products become pollutants. The Plaintiff brought these claims under under California public nuisance law, strict product liability for failure to warn and design defect, breach of express warranty, and unlawful practices under the California Consumer Legal Remedies Act. Filed 2/26/2020. See the complaint here.

Status: Defendants’ Motion to Quash Summons and Dismiss for Lack of Personal Jurisdiction was denied on June 6^th 2022 by the Superior Court of California of the County of San Mateo. The case will be heard in California. Previously, the action was moved from California Superior Court to Federal Court following Defendants' motion. Here, the Court granted Plaintiff's motion to remand the case to San Mateo County Superior Court, rejecting the Defendants' theory of complete preemption by federal common law and holding that the Defendants had not satisfied their burden to establish federal jurisdiction.

Allegations: Plaintiff, environmental organization, brought an action against Walmart, Inc. for injunctive relief enjoining Defendant's acts of unfair competition. The Plaintiff alleges that the Defendant's labeling of products as recyclable are material, untrue, and misleading, thus constituting unfair competition under California law and Section 4 of the Federal Trade Commission Act, as well as violating the California Environmental Marketing Claims Act. Filed 3/29/2021.

Outcome: On June 3, 2022, the parties filed a joint stipulation for dismissal (see the stipulation for dismissal here). This followed the court's granting of defendant's motion to dismiss with leave to amend. The motion to dismiss was granted because plaintiff failed to sufficiently allege, for purposes of Article III standing, an injury based on future diversions of resources.

Allegations: Plaintiff is a non-profit alleging that Gelson's Markets continues to sell non-recyclable plastic grocery bags to consumers despite a California law requiring any plastic reusable grocery bag to be recyclable. Plaintiff seeks an order enjoining defendant's unlawful conduct. Filed 6/3/2022. See the complaint here.

Status: Pending

Allegations: Plaintiff, a non-profit dedicated to ending plastic pollution, alleges that defendant continues to sell non-recyclable plastic bags despite the California law banning the sale of non-recyclable plastic bags. Plaintiff seeks an order enjoining the defendant's unlawful conduct. Filed 6/3/2022. See the complaint here.

Status: Pending.