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).