Pepsi, Coke Suits Signal Heightened Angst Over Plastic Bottles

The detritus of plastic bottles in waterways and landfills is spilling into action in courthouses and statehouses across the country.

Soft drink makers the Coca-Cola Co. and PepsiCo Inc. were sued by Los Angeles County in late October for allegedly misleading consumers about the recyclability of their plastic bottles—the latest in a string of greenwashing lawsuits against Coca-Cola claiming the company overstated its environmental credentials in recent years. Separately, PepsiCo. scored a win this month in a suit brought by the New York attorney general that sought to hold the drinks giant accountable for pollution in the Buffalo River.

As the cases wind their way through the courts, there’s still uncertainty over what environmental advertising is deemed acceptable, and which corporate statements could trigger litigation. Meanwhile, companies are coming to grips with newly-enacted laws in states including California, Colorado, Oregon, Maine, and Minnesota that would require corporations to make financial contributions to help fund recycling infrastructure. Beverage companies are seeking to comply with the new laws, some of which kick in next year, while they simultaneously aim to boost use of recycled plastics.

Graphic: Jonathan Hurtarte/Bloomberg Law

“There’s no doubt in my mind that there’s a growing threat of lawsuits on these companies,” said Sam Pearse, plastics campaigns manager at The Story of Stuff Project, which has called on the beverage industry to use refillable glass bottles instead of single-use plastic.

The soft drinks lawsuits follow several new greenwashing claims alleging that advertising for certain plastic water or baby bottles misled consumers because they could contain microplastics. Even plastic producers are facing lawsuits: Exxon was sued by California’s attorney general in September for allegedly deceiving the public about the recyclability of plastics.

Emily Lyons, a partner at Husch Blackwell, said the soft drinks industry is a target for scrutiny both because its products are ubiquitous and because beverage businesses often tout themselves as environmentally conscious.

“It’s very readily identifiable who the companies are that produce that kind of packaging,” she said.

‘Environmental Scourge’

The LA county lawsuit said Pepsi and Coca-Cola “have littered” the county with their plastic bottles “and engage in a disinformation campaign to make consumers falsely believe that purchasing their products in single-use plastic bottles is an environmentally responsible choice.”

The New York lawsuit, filed by state Attorney General Letitia James (D), said Pepsi’s products endanger public health and threaten the ecosystem. But a state judge threw out the suit on Nov. 1, reasoning that the challenge “seeks to impose punishment while searching for a crime.”

“While we were disappointed to see the New York Attorney General lawsuit against Pepsi be dismissed, these are early days when it comes to plastics litigation,” said Judith Enck, a professor at Bennington College who launched a group advocating to reduce plastic pollution called Beyond Plastics.

“Plastic beverage bottles are doing tremendous damage to the environment and public health and the response from the producers has been more PR and few effective actions,” said Enck, formerly a regional administrator at the Environmental Protection Agency.

Coca-Cola has faced similar greenwashing suits over the past few years, for example when Earth Island Institute sued the beverage maker for allegedly misleading consumers about the environmental impact of its products. The case is still playing out: the Superior Court for the District of Columbia sided with Coca-Cola in 2022, but a DC appeals court said in August that Earth Island plausibly alleged that the drinks giant’s statements could “mislead consumers into believing that it is an environmental steward, when it is in fact an environmental scourge.”

Corporate Responsibility

Businesses will need to wait and see how courts rule on the drinks company lawsuits and how changes to state laws on manufacturers’ roles in recycling—known as extended producer responsibility—shake out, said Tanya Nesbitt, an environmental lawyer at Thompson Hine.

“There’s still a lot of everyday confusion about what is recyclable and what is not, from just a consumer perspective,” Nesbitt said.

The new laws—all in different stages of implementation—are set to require companies to pay fees based on the amount of single-use packaging they sell in an effort to fund better collection, sorting and processing of bottles. Companies have to pay their first producer responsibility dues in Oregon by July 2025 and in Colorado by January 2026. The California law has a long-term goal requiring all packages for products to be recyclable or compostable by 2032. The drinks industry supported and advocated for some of these laws—in Colorado, for example—hoping to fund stronger recycling infrastructure for their products.

A successful extended producer responsibility initiative “improves recycling because it increases recycling access, decreases taxpayer costs and drives up recycling rates—which can reduce plastic waste and the need for new plastic,” said William Dermody, a spokesperson for the American Beverage Association.

A 2023 brand audit by environmental conservation group Break Free From Plastic—cited in the LA county lawsuit—says Coca-Cola and PepsiCo are among the world’s top plastic polluters. Pepsi, however, said in a statement that it “remains serious about plastic reduction and effective recycling” and pointed to improvements. New initiatives include paper replacements for plastic rings on multi-packs of drinks in North America, for example.

Coca-Cola did not respond to a request for comment, but the company has committed to having at least 25% of its beverages in refillable containers and to using 50% recycled material in its packaging by 2030.

Whatever happens with the lawsuits, the demand for less plastic pollution is clear. For companies striving for more environmentally friendly packaging, it’s important that they provide very clear instructions to consumers about the nuances of disposing of certain products, and don’t use terms like “biodegradable” or “compostable” too loosely, Lyons said.

“They’ve got to really make sure they have the data to back it up,” she said.