Microplastics Targeted in Surge of Consumer Greenwashing Suits

Consumers of Dr. Brown’s Baby bottles from the Handi-Craft Co. or FIJI water from The Wonderful Company LLC may be choosing those items based on their advertising as “BPA-free” or “Natural Artisan Water.” But recent lawsuits allege those claims are deceptive when the products could contain microplastics.

The suits are among at least eight prospective class actions filed in the first half of 2024 alleging that branding like “all-natural” is misleading if a product may contain the microscopic plastic pieces. They represent a sharp uptick in legal focus on the particles; the only other suit involving microplastics in the US was dismissed in 2019, according to New York University’s Plastics Litigation Tracker.

The litigation spree comes on the heels of a landmark March study from the New England Journal of Medicine that found microplastics lead to a higher risk of heart attacks and strokes, and about a year after a University of California San Francisco review of 2,000 scientific studies found that ingesting microplastics could increase risk of cancer.

Claims like “BPA-free” lull customers into a false sense of security, said Bahar Sodaify, a partner at Clarkson Law Firm, which is representing the consumers that sued Handi-Craft in June. Sodaify also represents customers in a class action suit against health and hygiene product manufacturer Philips.

The complaints said that both companies make their baby bottles from propylene, which recent studies found can release billions of microplastics and nanoplastics when heated in the microwave. Companies have a responsibility to ensure clients are made aware of any potentially harmful substances in their products, Sodaify said.

“The public relies on manufacturers to do their job and ensure that any product that they place in the marketplace is safe,” she said. “There’s a reasonable expectation of that, especially in products targeted toward infants and children.”

Handi-Craft Co., The Wonderful Company, and Philips did not respond to requests for comment.

A Familiar Pattern

While the legal focus on microplastics is relatively new, the recent suits follow a pattern similar to other class actions alleging that companies glossed over the potential health impact of their products, said Jared Kessler, a partner at Winston & Strawn LLP who defends food and beverage companies against class action cases. Kessler declined to discuss whether he was involved specifically in microplastics suits.

Negative attention in the news or from regulators often precedes an influx of greenwashing claims, he said, referring to the practice in which a company portrays itself as more environmentally friendly than it actually is, using labels like “eco-friendly” or “natural.”

“The regulators or the media or the reporting agencies will focus on these substances or these alleged contaminants and take a position that some amount of them might be harmful,” Kessler said. “That is what consumers will often latch on to.”

Mark Hahn, a senior scientist at the Woods Hole Oceanographic Institution, said microplastics are one of the hardest substances in the world to study due to their varying sizes and chemical properties, but recent advances in research reveal more about their impact on humans.

“There’s now more papers coming out where they can detect very small plastics including in human tissues,” Hahn said. “That’s been a real increase in just the past two or three years. Before that, there were very few reports of microplastics or nanoplastics.”

As research has begun to focus on the human health effects of microplastics, Hahn said he has noticed increasing interest from both members of public and news outlets. While Hahn added more research has to be done, he’d advise consumers to avoid any risk of microplastic consumption as a scientist.

“There are a lot of uncertainties about exactly what the health impacts are and which plastics might be most hazardous,” Hahn said.

Sandra Edwards, chair of Winston & Strawn’s product liability and mass torts practice, said the surge of plastic-related suits has reminds her of similar litigation around Zantac, a heartburn drug manufactured by Pfizer Inc.

Since 2018, thousands of lawsuits have been filed alleging customers would not have purchased the medication if they had known it had the potential to cause cancer. Media attention preceded that wave of class actions, too.

“There was a news report from some dubious scientist alleging that there was a particular compound in Zantac associated with cancer,” Edwards said. “Later, there were news reports about chemicals and hair straighteners being associated with cancer and lawsuits were filed. It’s a very common pattern we see after research is released.”

In 2020, the Food and Drug Administration requested the withdrawal of Zantac from US markets due to cancer risk, though a 2023 study by JAMA Network Open found that its use was not associated with cancer and called for additional research. In May, Pfizer agreed to settle more than 10,000 related lawsuits.

Litigation over the greenwashing of a chemical or compound often doesn’t stop with false advertising lawsuits, Edwards said. Sometimes, she said, legal action will evolve into her area of product liability.

“With the Zantac litigation, there were two tracks of lawsuits filed,” Edwards said. “There was a series of class actions alleging that the product didn’t disclose that it allegedly caused cancer, and there were allegations that the product itself was causing cancer.”

Edwards said she’s prepared to see lawsuits that allege harm caused by products that contain microplastics.

“In a class action, you don’t actually have to show that anybody has been physically harmed,” Edwards said. “It’s a much lower hurdle to cross... But I expect to see microplastics get there eventually.”

A Snowball Effect

Sodaify said after Clarkson filed its original lawsuit claiming false advertising on microplastics, she began to hear from more and more concerned customers.

“Consumers reasonably are not aware that products intended for children would be harmful in any way,” Sodaify said. “Once these cases were filed, and the public really became aware of this, people were reaching out to us and asking what they can do.”

After a class action suit on a topic is brought forward, others often pile on, Edwards said.

“It might be that somebody saw the bottled water (lawsuit) and thought, ‘Oh, we’ll look for other products that we could make the same allegations,’” she said. “It’s all been a tight time frame.”

Photographer: Jonathan Hurtarte/Bloomberg Law

Kessler said he’s noticed the substances named in greenwashing lawsuits shift depending on public interest and emerging research.

“We’ve seen other cases in years past where consumers are pointing to the alleged presence in a product or packaging of heavy metals,” Kessler said. “Mercury, lead, cadmium, arsenic, BPA, titanium dioxide, benzene… they’ve all been named in claims on similar theories. It’s the continuation of a trend.”

While the courts have repeatedly considered greenwashing cases on those particles, a 2018 class action case about the levels of microplastics in Nestle S.A.'s bottled water was one of the only ones of its kind until the new round of cases in 2024.

The suit against Nestle was tossed in 2019 after the US District Court for the Central District Court of California found the plaintiff failed to provide evidence to support her claims, which included allegations she had been harmed by the ingestion of plastics from drinking Nestle Pure Life bottled water.

The judge in the Nestle case also said concerns about microplastics in water should be addressed by the US Food and Drug Administration, not the courts.

“Congress has placed the issues raised in Plaintiff’s complaint—the labeling of bottled water as pure or purified—squarely within the jurisdiction of the FDA,” the court found.

The US District Court for the Northern District of Illinois used similar reasoning in dismissing one of the suits against BlueTriton Brands for claims its Ice Mountain water is “100% Natural” in early August. Two of the other class actions filed this year were voluntarily dismissed and the remaining cases are ongoing.

Nestle and BlueTriton did not respond to requests for comment.