The National Sea Grant Law Center


  • Big Problem for Big Plastic? Suit Against Plastic Producers Remains in State Court

  • June 24th, 2021 — by Sierre Anton — Category: Miscellaneous

  • In late February 2020, The Earth Island Institute, an environmental advocacy group, fired a shot in the legal fight over ocean pollution by filing suit against ten major beverage companies, including Coca-Cola, PepsiCo, and Nestle. Earth Island is pursuing a litigation strategy somewhat similar to that advanced against tobacco companies and oil companies for human health and environmental harms allegedly caused by their products.

    Plastics and microplastics are a major issue that threaten the wellbeing of oceans and rivers, as well as the animals that live in them. It is estimated that by 2050, plastic will outweigh fish in the oceans. Microplastics, which are small plastic pieces less than five millimeters in length, can already be found inside of fish, birds, and even humans. A study conducted by the University of Newcastle, Australia suggests that human beings eat approximately five grams of plastic—roughly the weight of one credit card—every week, primarily from drinking water and eating seafood. And when it comes to seafood, many of the plastics in the ocean are single-use plastics, such as beverage containers and food wrappings. The Great Pacific Garbage Patch, a collection of plastics accumulated by ocean currents in the Pacific, is arguably one of the greatest testaments to the shocking presence of plastics in the ocean today.

    Earth Island seeks to address this threat to our environment by holding companies responsible for the plastic waste generated by their products. In the hazardous waste world, this concept is referred to as “Cradle to Grave” responsibility, meaning generators of hazardous waste are legally responsible for the improper disposal of that waste. Of course, when a plastic bottle is filled with a beverage, it is a useful product and not hazardous waste, which makes this legal principle a bit tricky to adapt to beverage companies. The corporate defendants named in the lawsuit are accused of not only generating much of the plastics that end up as pollution, but also of misleading lawmakers and the public about how recyclable most plastics actually are. The explosion of plastic pollution in recent years, the Institute charges, is a consequence of an increase in the use of plastics that was fueled by an inaccurate impression that most of them can actually be recycled. According to the EPA, landfills in the United States received 27 million tons of plastics. Unfortunately, a lot of plastic that is not recycled or transported to landfills is discarded improperly and can be carried into waterways by runoff and other sources.

    The Earth Island Institute's lawsuit was filed in the San Mateo County Superior Court in California. The Institute’s foremost argument is that the defendants ran afoul of a California statute known as the Consumer Legal Remedies Act, which protects consumers from harm caused by products with misleading advertising. Earth Island asserts that, in addition to the financial burden of cleaning up plastic pollution that has been incurred by the public and nonprofits like Earth Island, the public has suffered harm on account of not being able to utilize and enjoy the ocean environment as a result of marine plastic pollution. The Institute further alleges that the defendant companies are liable for public nuisance, breach of express warranty, defective product liability, negligence, and failure to warn of the harms of single-use plastics. In terms of remedies, the organization is seeking reimbursement for costs associated with plastic clean-ups in San Mateo County. Earth Island is also requesting remedial damages to repair the harm that plastics have caused to the area, plus an injunction that would prevent the defendant companies from marketing and promoting products as recyclable if the products are unlikely in practice to actually be recycled.

    One of the biggest hurdles that Earth Island was expected to face in this lawsuit was keeping the case in state court. Similar cases, such as those against oil companies, have been removed to federal court due to the nationwide scale of the problem allegedly caused by the defendants. In addition to the geographic considerations at play, corporate defendants frequently attempt to remove cases of this nature to federal courts on the belief that federal juries are more sympathetic to corporate defendants than their state counterparts. But in February of 2021, Earth Island Institute succeeded in their effort to have the lawsuit remain in state court.

    While Earth Island attempts to curb plastic pollution through the courts, other groups and legislators are taking action to prevent pollution through the enactment of new statutes. The California legislature, for example, is considering proposals that would impose extended producer responsibility for food and drink companies, thereby requiring them to devise plans to capture empty containers. And on the federal level, the Senate is currently reviewing the Break Free from Plastic Pollution Act, which would create a nationwide container redemption program, ban some single-use plastics, and require the use of recycled plastics in the production of new bottles and containers.

  • Sierre Anton
    NSGLC Research Associate

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