A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club.  Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022).  Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material.  Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse.  Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.” 

The court first rejected plaintiffs’ claim that a reasonable consumer would believe the “100% recyclable” labels to mean that all bottles will be recycled in their entirety into new bottles for reuse.  According to the court, plaintiffs’ theory was implausible because “recyclable” in everyday usage means capable of being recycled, rather than a promise that an object will actually be recycled. 

The court also held that plaintiffs did not plausibly allege that the “100% recyclable” labels are impermissible under the Federal Trade Commission’s Green Guides, which provide a standard for evaluating environmental marketing claims under California law.  The court reasoned that the Green Guides allow unqualified recyclable claims if recycling facilities are available to at least 60% of consumers or communities where the item is sold.  Thus, the propriety of “recyclable” labels under the Green Guides depends on the availability of recycling programs that accept the product at issue, not whether all products are converted into reusable material.  As such, because plaintiffs only cited to reports that indicated a nationwide lack of capacity to process plastic waste, but did not allege that recycling facilities in California do not accept or process the plastic bottles supplied by defendants, plaintiffs failed to allege that the “100% recyclable” claim is impermissible under the Green Guides.

This case is one of a few recent lawsuits challenging food and beverage companies’ recyclability or sustainability claims.  In Earth Island Inst. v. Coca-Cola Co., No. 2021 CA 001846 B (D.C. Super. Ct. Nov. 10, 2022), which we recently covered, the D.C. Superior Court dismissed the complaint, holding that aspirational statements of “sustainability” are not actionable under D.C. consumer protection law.  In Earth Island Inst. v. Crystal Geyser Water Co., No. 20-CIV-01213 (Cal. Super. Ct.), the plaintiff sued ten consumer products companies, alleging that the companies’ recyclable claims are misleading.  The defendants have filed a demurrer to the complaint, which is currently pending before the San Mateo County Superior Court.  In a similar case we previously covered, Keurig settled on a nationwide class basis claims alleging that the recyclable labels on its K-cups misrepresented how widely the coffee pods are recycled; the court has preliminarily approved the settlement.  Smith v. Keurig Green Mountain, Inc., No. 18-CV-06690-HSG, 2022 WL 2644105 (N.D. Cal. July 8, 2022).

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Photo of Kaixin Fan Kaixin Fan

Kaixin Fan is an associate in the firm’s London office, where she is a member of the Dispute Resolution Practice Group. Prior to joining the London office, Kaixin was resident in the firm’s San Francisco office, where she was a member of the…

Kaixin Fan is an associate in the firm’s London office, where she is a member of the Dispute Resolution Practice Group. Prior to joining the London office, Kaixin was resident in the firm’s San Francisco office, where she was a member of the Food, Drug, and Device and the Litigation and Investigations Practice Groups. Kaixin also maintains an active pro bono practice.

Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable…

Cortlin Lannin is a litigator who defends clients in high-stakes complex matters, specializing in class action cases implicating consumer protection and competition claims. He approaches his matters with efficiency and creativity, developing thoughtful strategies to resolve cases and investigations early and on favorable terms.

On behalf of a range of clients in the food, beverage, and consumer packaged goods industries, Cort has navigated pre-complaint disputes and defended multiple class actions implicating deceptive and false advertising practices under California’s UCL, FAL, and CLRA, and other states’ false advertising and unfair competition laws. Cort also has a depth of experience with competition matters, having represented clients in civil class action litigation, non-public governmental investigations of both the civil and criminal variety, and internal investigations. He has had a lead role in cases and investigations implicating the high tech industry, alleged “no-poach” agreements, and price-fixing and similar cartel conduct. He is also a leader in the antitrust bar and the recent chair of the Antitrust Section of the Bar Association of San Francisco.

Cort is a co-chair of Covington’s LGBT+ Affinity Group and is deeply involved in the firm’s efforts to recruit, mentor, and promote diverse attorneys, including LGBT+ attorneys.

Prior to joining Covington, Cort was a national political consultant who specialized in polling and focus group research. He leverages this research background in his litigation practice, particularly in defending consumer cases.

Photo of Ashley Simonsen Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in…

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.