Earth Island is pushing forward with its first-of-a-kind lawsuit against food, beverage and consumer goods companies for their role in perpetuating the plastic pollution crisis. Last week, the environmental group, which publishes Earth Island Journal, filed an amended complaint in its 2020 case against major plastic users.
Earth Island Institute is suing eight major consumer goods companies, alleging they have marketed their single-use plastic products as recyclable despite knowing that little plastic can, in reality, be recycled. Photo by Will Parson/Chesapeake Bay Program.
The lawsuit targets companies including Coca-Cola, PepsiCo, and Nestlé USA, Inc. (now Blue Triton Brands) that are responsible for a vast amount of the plastic that pollutes land, oceans, and waterways. An estimated 14 percent of global branded plastic pollution can be traced to those three companies alone.
“Companies like Coca Cola, Pepsi, and Nestle choose to use plastic packaging and so should be responsible for the full life-cycle of that packaging,” says Sumona Majumdar, chief executive officer of Earth Island Institute. “And consumers deserve to know the truth about what happens to plastic waste that these companies are using.”
The lawsuit alleges that the companies have long marketed their single-use plastic products as recyclable to appeal to consumers. They have done so despite knowing for decades that most “recyclable” plastics will not, in fact, be recycled due to practical constraints related to cost and labor. As the complaint lays out, “the annual weight of plastic production globally is roughly the same as the entire weight of humanity.” Yet “recycling captures less than 10 percent of plastic produced annually.”
As a result, these companies are misleading consumers, the suit alleges. What’s more, the plastic they use in their products is polluting coasts and filling landfills around the world, including in California, where the amended complaint was filed in state court. There, it is harming humans, wildlife, oceans, and waterways — and, plaintiffs say, creating a public nuisance.
The amended complaint provides additional information to support Earth Island’s original nuisance claim, including details about the recycling shortfall in California, where less than 15 percent of single-use plastic is recycled. It also identifies specific products produced and sold by each of the 10 defendants that are marketed as recyclable but that, practically speaking, cannot be recycled in the Golden State.
For example, the complaint notes that Colgate, a defendant in the case, prominently markets its toothpaste tubes as recyclable, including with use of the well-recognized universal recycle symbol — three arrows looping back on themselves in a triangle shape. But toothpaste tubes are infrequently recycled.
“There are a lot of recycling facilities that say ‘toothpaste tubes are not recyclable, period,’” says Tyson Redenbarger, an attorney with Cotchett Pitre & McCarthy, which is representing Earth Island in the lawsuit. “And yet those companies put a recycling symbol on their product. So we think that’s one example of why this whole recycling symbol, the use of it, is really misleading.”
Earth Island, which filed the lawsuit on behalf of itself as well as several of its fiscally-sponsored projects, dropped several other claims from the lawsuit, but also added a new one to the amended filing. That claim is made under California’s Unfair Competition Law, a “very powerful statute” that Redenbarger says allow plaintiffs to hold companies liable for just about “anything that is unfair, unlawful, or fraudulent.”
The landmark plastic lawsuit is part of a growing trend of plastics-related litigation in the United States that has accompanied increasing plastic production, growing awareness of the health and environmental harms associated with plastics production and disposal, and increasing understanding of the fallacy of recycling as a solution. Earth Island has been at the forefront of this trend — in 2021, the nonprofit filed two additional plastics lawsuits, one against BlueTriton Brands and another against Coca-Cola, alleging the companies are greenwashing their products while simultaneously generating massive amounts of plastic waste.
“The increase in plastic-related litigation since we filed our original complaint in early 2020 is a testament to the fact that we have a plastic problem,” says Majumdar. “These corporations can’t keep shirking their responsibility to deal with their plastic. We are hopeful that this court will agree.”
Earth Island’s lawsuit follows in the same vein as recent litigation against Big Oil for its knowing contribution to the climate crisis. Most recently, California joined the dozens of state and local governments attempting to hold oil and gas companies to account, suing five fossil fuel giants — BP, Chevron, ConocoPhillips, Exxon Mobil, and Shell — in September for misleading the public about the harms caused by their products.
“Oil and gas companies have privately known the truth for decades — that the burning of fossil fuels leads to climate change — but have fed us lies and mistruths to further their record-breaking profits at the expense of our environment,” California Attorney General Rob Bonta said in a statement. “Enough is enough.”
Last year, Bonta also announced an investigation into fossil fuel and petrochemical companies’ contribution to the plastic pollution crisis, given their development and promotion of oil-based plastic products.
Redenbarger sees a role for this lawsuit in making these connections as well: “We think it helps, too, in terms of educating the public, and hopefully informing people that Big Oil is behind plastic as well. They’re the ones that are at fault, essentially, for the pollution we are dealing with, not just gas and oil emissions, but also plastic.”
More lawsuits against Big Oil and Big Plastic are almost certainly coming down the pipeline. Which means it may only be a matter of time before these industry titans are held accountable for their damaging choices.
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