New York calls PepsiCo’s plastic pollution a ‘public nuisance’ in first-of-its-kind lawsuit

The company's packaging was found to be the most significant contributor to plastic waste clogging the Buffalo River.

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SOURCEGrist

Plastic trash produced by the company PepsiCo has become a “persistent and dangerous form of plastic pollution” for residents of the Buffalo River watershed in upstate New York, according to a new lawsuit filed Wednesday.

The suit, brought by New York Attorney General Letitia James, is one of the first legal challenges from a state against a major plastic producer. It draws on a 2022 investigation from James’ office in which PepsiCo-branded plastic packaging was found to be by far the most significant contributor to plastic waste clogging the Buffalo River and its tributaries. Out of nearly 2,000 pieces of plastic trash collected at 13 sites along the waterways, PepsiCo products — which include brands like Aquafina, Cheetos, Gatorade, and Lay’s — accounted for more than 17 percent of those with identifiable branding.

All that plastic litter is breaking down into tiny fragments — microplastics — that are winding up in Buffalo’s water supply and the fish that people eat. Some of the chemicals contained in microplastics are carcinogenic, and researchers have raised concerns that the particles could cause reproductive dysfunction and other maladies.

“PepsiCo’s irresponsible packaging and marketing endanger Buffalo’s water supply, environment, and public health,” James said in a statement

The New York lawsuit includes a “public nuisance” claim and requests that the state’s Supreme Court require PepsiCo to reduce the amount of plastic packaging entering the Buffalo River and remediate pollution that has already occurred. It also invokes consumer protection law: Although PepsiCo has “long been aware” of the environmental and human health risks posed by single-use plastic products, the AG’s office says PepsiCo has obscured these risks in communications to the public — in part by promoting plastics recycling and the promise of a so-called “circular economy,” in which plastic products can be endlessly reprocessed rather than eventually turned into waste. 

Letitia James speaks to a microphone
New York Attorney General Letitia James Spencer Platt / Getty Images

One PepsiCo communication cited in the lawsuit says the company’s plastic recycling strategy will “keep the material in the circular economy.”

Most plastics — including all of PepsiCo’s snack food wrappers — cannot be recycled, and even the company’s plastic soda bottles can only be turned into a new bottles a few times before they have to be junked. Nationally, only 5 percent of plastics are ever turned into new products.

Meanwhile, PepsiCo has repeatedly missed or failed to make progress toward its own targets for plastic reduction and the use of recycled content. Most recently, the company reported an 11 percent increase in virgin plastic use between 2020 and 2022, despite a commitment to reduce virgin plastic by 20 percent by 2030. Between 2018 and 2022, it also reported a decrease in the fraction of its plastic packaging that was reusable, recyclable, or compostable.

In response to Grist’s request for comment, PepsiCo said it is “serious about plastic reduction and effective recycling.”

”This is a complex issue and requires involvement from a variety of stakeholders, including businesses, municipalities, waste-reduction providers, community leaders, and consumers,” a spokesperson said via email.

According to a national waste audit coordinated by the nonprofit Break Free From Plastic Pollution, PepsiCo has been among the top three companies creating the most pieces of plastic litter every year since 2018. Only the Coca-Cola Company has consistently produced more plastic litter.

Environmental nonprofits have repeatedly sued PepsiCo and other companies over their use of plastic and claims about recyclability, but these suits have been less common at the state level. Last year, Connecticut’s attorney general filed a truth-in-advertising lawsuit against Reynolds Consumer Products, arguing that the company labeled its Hefty trash bags as recyclable “despite full knowledge that their bags were incompatible with recycling facilities in Connecticut.” Minnesota’s attorney general filed a similar lawsuit earlier this year, targeting both the Hefty manufacturer and Walmart.

Person carries a trash big in the woods next to a river.
Volunteers pick up trash along the Buffalo River in upstate New York. Courtesy of Buffalo Niagara Waterkeeper

Those suits, however, did not invoke public nuisance law — something that makes the PepsiCo case “new and very exciting,” according to Bethany Davis Noll, executive director of the State Energy and Environment Impact Center at the NYU School of Law. She could think of only one other ongoing public nuisance lawsuit related to plastic pollution, filed in 2020 by the nonprofit Earth Island Institute against companies including PepsiCo and Coca-Cola. Public nuisance has played a more prominent role in recent lawsuits filed by attorneys general against manufacturers of PFAS, or “forever chemicals,” which have tainted drinking water supplies worldwide.

The New York lawsuit seeks to require PepsiCo to attach a warning label to any single-use plastic products sold in the Buffalo region, conveying plastics’ risks to public health and the environment. It also seeks civil penalties, restitution, and disgorgement of any profits it made through sales in the Buffalo region that were found to have been illegal under New York state’s consumer protection laws.

Rachel Karasik, a senior policy associate at the Duke University Nicholas Institute for Energy, Environment, and Sustainability, said a successful case could spur PepsiCo to invest in reuse systems throughout the Buffalo area. In the absence of a New York state-wide extended producer responsibility law for plastic packaging — a policy that makes plastic producers financially responsible for the waste they produce — Karasik also said litigation could yield financing for plastic cleanup and collection activities.

Noll hoped the New York attorney general’s case would inspire more legal challenges elsewhere. Plastic pollution is “prevalent all around the country,” she told Grist. “We’ve got to figure out a way to get companies to stop lying about how this stuff is recyclable.”

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