Consumer Plastics Suits Persist as Governments Monitor Effects

Concerns about plastic, including microplastics and synthetic microfiber, pollution are growing. Lawsuits, including a recent lawsuit targeting the marketing of Phillips Avent-brand baby bottles, have focused on the direct handling and discharging of microplastics, as well as design and sale of plastic products that allegedly pollute the environment and/or harm ecological or human health.

As federal and state governments sharpen focus on this issue, lawsuits seeking to hold companies accountable for their alleged contributions to plastic pollution continue to proliferate.

Government Action

Federal efforts have sought to better understand plastic pollution and evaluate policies and regulatory tools to tackle the issue. Last month, the Biden administration released its government-wide strategy to target plastic pollution under existing federal laws.

The 2015 Microbead-Free Water Act banned manufacture of rinse-off cosmetics containing intentionally added plastic microbeads, while the Plastic Pellet Free Water Act, introduced in the Senate in 2023, would prohibit discharge of plastic pellets or other pre-production plastic materials from facilities generally.

The Save Our Seas 2.0 Act of 2020 required the Interagency Marine Debris Coordinating Committee to submit a congressional report on microfiber pollution that includes recommendations for reducing microfiber pollution and a plan for how federal agencies can lead the reduction effort.

California takes the lead when it comes to microplastics with its statewide microplastics strategy, approved by the Ocean Protection Council. Generally, state efforts have sought to prohibit microbeads in personal care products, ban or restrict use of certain single-use plastics, and hold producers responsible for end-of-life management of their plastic products. State efforts targeting synthetic microfiber pollution have sought to require labeling on synthetic clothing and installation of microfiber filtration systems on washing machines.

Plastics Litigation

Citizen suits have targeted direct handling and discharge of microplastics, as well as microplastics releases allegedly resulting from product design. In 2019, a plastic producer was found liable under the Clean Water Act for unlawful discharges of plastic pellets and polyvinyl chloride powder, a widely produced synthetic plastic polymer, from one of its plants. The case’s settlement required the company to take corrective measures and invest $50 million to promote environmental sustainability in the region.

Further, in 2020, a company was sued in the District of South Carolina under the Clean Water Act and Resource Conservation and Recovery Act for its alleged handling and discharging of plastic pellets at its packaging and distribution facility. The resulting settlement required the company to take corrective measures and pay $1 million for beneficial environmental projects.

In November 2023, tire manufacturers were sued in the Northern District of California for their alleged unlawful take of Endangered Species Act-protected species of coho salmon, steelhead trout, and Chinook salmon caused by the manufacturers’ inclusion of N-(1,3-dimethylbutyl)-N’-phenyl-p-phenylenediamine in the tires they manufacture and distribute, which makes tires more durable.

The complaint alleges that 6PPD transforms into 6PPD-quinone, a toxic substance to aquatic species, at the surface of the tire or when released into the environment. It further alleges that, because of the manufacturers’ products, 6PPD-q is now found in toxic concentrations in watersheds across the West Coast.

Greenwashing Claims

Other lawsuits have asserted consumer protection or greenwashing claims based on alleged misrepresentations concerning product recyclability or similar. For example, in 2018, Keurig Green Mountain was sued for allegedly misrepresenting its plastic single serve coffee pods as recyclable. The case settled in 2022.

Lawsuits have even targeted the apparel industry. H&M filed a motion to dismiss Sally v. H&M Hennes & Mauritz, a class action complaint filed late last year in the Eastern District of Missouri for alleged misrepresentation that certain of its clothing products are made with recycled and organic materials.

The plaintiffs argue that the products aren’t made with recycled or organic materials, but rather with virgin plastic-based, conventionally grown, and nonorganic materials. The complaint notes that synthetic materials such as polyester shed microplastics with wash and wear, a prime source of microplastics pollution.

In June, consumer protection lawsuits were filed against manufacturers of baby bottles and sippy cups, as well as bottled water companies, based on alleged misrepresentations about product safety or contents when the products allegedly leach or contain microplastics.

Public Nuisance Claims

In 2020, major food, beverage, and consumer products businesses were sued in California state court based on their alleged contributions to the plastic pollution in California’s waterways and coasts. The first amended complaint asserts, among other claims, a public nuisance claim based on the defendants’ alleged false advertising of the recyclability of their products. On July 11, 2024, the court denied the defendants’ motion to dismiss the public nuisance claim, finding that causation was adequately pleaded.

Further, in 2023 and 2024, respectively, New York and Baltimore City sued PepsiCo Inc. and others asserting various claims, including public nuisance, for the defendants’ alleged contributions to plastic waste.

Securities Claims

In 2021, Danimer Scientific, a biopolymer manufacturer, was sued under Section 10(b) of the Securities Exchange Act of 1934 based on alleged misrepresentations concerning the biodegradability of the polyhydroxyalkanoates that it sells. While the court found that certain statements were materially misleading, the court concluded that the plaintiffs failed to allege that the defendants acted with scienter. The case was dismissed in September 2023.

As concerns surrounding plastic pollution continue to take center stage, we are likely to see more lawsuits styled as public nuisance or citizen suit claims that target plastic pollution allegedly resulting from false advertising or product design. Further, consumer protection and greenwashing claims are likely to continue given significant settlements in this space.

Companies should be carefully evaluating the litigation risk associated with downstream impacts of their product ingredients and product representations concerning recyclability and product safety.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Brian Scarbrough is co-chair of Jenner & Block’s insurance recovery and counseling practice.

Arie Feltman-Frank is an associate at Jenner & Block, focusing on environmental and workplace health and safety law.

Write for Us: Author Guidelines