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Judge dismisses NY attorney general's lawsuit against Pepsi over plastic litter
By
Rosemary Misdary
Published Nov 1, 2024
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Lindsey Nicholson/UCG/Universal Images Group via Getty Images
By
Rosemary Misdary
Published Nov 1, 2024
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An upstate judge has dismissed a lawsuit filed by state Attorney General Letitia James that sought to hold Pepsi liable for plastic that accumulated on the banks of the Buffalo River.
The legal defeat comes amid growing concern about the environmental consequences of plastics, which often aren’t recyclable despite marketing that claims otherwise. Earlier this year, state lawmakers passed legislation requiring companies reduce the amount of packaging they use, including plastics, by 30%.
But state Supreme Court Justice Emilio Colaiacovo ruled that James had unfairly targeted Pepsi and its subsidiary, Frito Lay, for an alleged “public nuisance” created by single-use plastic.
“Plastic packaging is used by more than just Pepsi and Frito Lay. Yet, the attorney general pursued only these defendants. Either this is a pervasive problem and all offenders have contributed to this ‘public nuisance’ or else it is nothing more than selective prosecution based on a naïve theory,” the judge wrote.
The judge was also skeptical of the attorney general’s argument that Pepsi should be held liable for litter discarded by people who bought its products.
“lnstead of pursuing those who commit the act, the attorney generaI wishes to penalize those who produce the discarded item. This theory has never been adopted by a court in this state or any other,” Colaiacovo wrote.
When James filed the suit in 2023, she touted it as an important effort to hold a corporate giant accountable for microplastics that contaminate the water supply.
“No company is too big to ensure that their products do not damage our environment and public health. All New Yorkers have a basic right to clean water, yet PepsiCo’s irresponsible packaging and marketing endanger Buffalo’s water supply, environment, and public health,” James said in a release at the time.
Her office argued that microplastics and the chemicals they carry are linked to a wide range of health problems, including reproductive dysfunction and intestinal inflammation. If James had been successful, the suit would have represented an important legal victory amid growing concern about microplastics – including in New York City’s water supply.
As part of the lawsuit, the attorney general’s office conducted an investigation into the pollution along the shorelines of the Buffalo River, an eight-mile waterway in Erie County with a watershed of approximately 450 square miles. The investigation found that more than 70% of the pollution was plastic and that PepsiCo products accounted for the largest source of that refuse, at just over 17%. McDonald’s came in second with almost 6% of the plastic litter.
“By its continued manufacturing, production, marketing, distribution, and sale of vast quantities of single-use plastic packaging, PepsiCo has significantly contributed to, and continues to contribute to, the existence of a public nuisance that injures the community living in the City of Buffalo and surrounding areas,” the complaint alleged. “PepsiCo’s plastic packaging also fails to warn the public or consumers of its potential to contribute to plastic pollution in waterways and fails to warn the public or consumers of the potential harms caused by its packaging.”
The suit states that the corporation knowingly continued to make more plastic packaging without seeking viable alternatives. According to the suit, the amount of single-use packaging Pepsi produced in 2022 outweighed seven Empire State Buildings.
“Plastic pollution poses a major threat to our planet and our public health,” wrote James' spokesperson Sophie Hamlin. “We are disappointed in this decision and are reviewing our options but remain committed to protecting communities from the dangers of plastic pollution.”
The Buffalo River was once among one of the most polluted waterways in the United States. From the late 1800s through the early 1900s, grain milling and manufacturing operations on the shorelines polluted the river to the point where all fish there were believed to be dead.
Remediation of the Buffalo River began in the late 1980s. More than 1 million cubic yards of contaminated sediment were removed from the river at a cost of $45 million. The program also restored the aquatic vegetation to bring back fish like walleye, bass and trout.
When fish consume plastic, it can cause intestinal injury and death. The plastic also moves through the food chain to bigger animals that consume fish, including humans.
“PepsiCo remains serious about plastic reduction and effective recycling,” the company wrote in an emailed statement. “We will continue to collaborate with key partners to advance smart material collection policies, improve recycling infrastructure, boost consumer awareness about the importance of recycling and establish partnerships focused on reducing waste and exploring innovative solutions to plastic pollution.”
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Health and Science
Rosemary Misdary
Rosemary is health & science reporter. Got a tip? Email [email protected] or Signal 646-544-9524.
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