Coca-Cola and PepsiCo sued (again) over recycling claims. What brands should know

Los Angeles County is the latest local or state jurisdiction to challenge corporate marketing claims about plastics as deceptive and harmful to human health and the environment.

The Oct. 30 civil lawsuit against Coca-Cola and PepsiCo describes plastic as a “public nuisance” — the material makes up seven of the 10 top litter items found on California beaches — and claims the two food and beverage companies bear at least some blame. The county said it spends at least $2 million annually to intercept trash on the Los Angeles River and Ballona Creek and millions more on street clean-up. 

The litigation says Coca-Cola and PepsiCo contributed to the problem by misleading consumers with advertising that praises the recyclability of single-use beverage bottles, even though U.S. recycling rates for plastic remain below 10 percent. “Except at the margins, it is theater — a show designed to make consumers feel good about, and be willing to, consume unprecedented volumes of defendants’ single-use plastic,” the suit alleges.   

Los Angeles County seeks a court order to stop these “unfair and deceptive business practices,” provide restitution for consumers and other businesses, and enact civil penalties of $2,500 for each violation. 

“The goal of this lawsuit is to stop the unfair and illegal conduct, to address the marketing practices that deceive consumers, and to force these businesses to change their practices to reduce the plastic pollution problem in the county and in California,” said Dawyn R. Harrison, Los Angeles county counsel.

While the companies aren’t commenting, the American Beverage Association issued a statement noting that California recycled 71 percent of bottles sold in the state in 2023, one of the highest rates in the U.S. “The allegation that our packaging is not and will not be recycled is simply not true,” the trade association said. 

An increasingly common refrain

Los Angeles County’s complaint echoes a far-reaching suit filed in November 2023 by New York state against PepsiCo thrown out Oct. 31 in a scathing dismissal. “While I can think of no reasonable person who does not believe in the imperatives of recycling and being better stewards of our environment, this does not give rise to phantom assertions of liability that do nothing to solve the problem that exists,” wrote New York Supreme Court Justice Emitio Cotaiacovo.

The New York state judgment is unlikely to have much bearing in Los Angeles, which has better facts and stronger state laws behind it, said Patrick Parenteau, professor of Law Emeritus and senior fellow for climate policy at Vermont Law and Graduate School. Other plastic-related cases are pending, including ones brought in the city of Baltimore.

Less talk, more action

Deceptive advertising cases related to plastics have a mixed record. A suit brought in Washington, D.C., by nonprofit Earth Island Institute against Coca-Cola, for example, survived a motion for dismissal in September. It’s “fair to say the courts are still struggling to come up with standards to judge whether corporate marketing is outright false or misleading or just ‘puffery’ or ‘aspirational,’” said Parenteau.

Companies can protect themselves by downplaying rhetoric about recycling and focusing on alternative packaging, said Judith Enck, president of policy advocacy group Beyond Plastics. 

“They should stop lying about plastics recycling and they should consider using alternatives to plastics, whenever possible,” Enck said. “For instance, chip bags can be made from paper and not plastic. When paper gets released into the environment, it does not last for centuries.”

In addition, businesses should support the development of uniform standards by government agencies that guide claims related to sustainability metrics and environmental policies, Parenteau said. “Not easy, but in the absence of bright lines there will be continued case by case ad hoc adjudications,” he said.

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