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“100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled

By Kaixin Fan, Cort Lannin & Ashley Simonsen on December 13, 2022
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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).

Photo of Kaixin Fan Kaixin Fan

Kaixin Fan is a member of the Food, Drug, and Device Practice Group. She advises pharmaceutical, biotechnology, and medical device companies as well as trade associations in regulatory matters. She has experience in matters relating to FDA informed consent requirements, advertising and promotion…

Kaixin Fan is a member of the Food, Drug, and Device Practice Group. She advises pharmaceutical, biotechnology, and medical device companies as well as trade associations in regulatory matters. She has experience in matters relating to FDA informed consent requirements, advertising and promotion issues, and other aspects of U.S. federal and state regulation of pharmaceuticals, biologics, and medical devices. Kaixin also assists clients in navigating complex regulatory matters in China, and works closely with local counsel in other Asia-Pacific jurisdictions. She has supported life science transactions by evaluating regulatory compliance of companies and advising on commercial agreements.

Kaixin maintains an active pro bono practice, with experience in the areas of housing, reproductive rights, and gender-based violence.

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Photo of Cort Lannin Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes consumer and antitrust class action matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has an extensive track record of defeating false advertising, privacy, and competition-related claims.

Cort has defended many…

Cortlin Lannin is a litigator who defends clients in high-stakes consumer and antitrust class action matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has an extensive track record of defeating false advertising, privacy, and competition-related claims.

Cort has defended many of the world’s largest consumer companies from class action litigation. This includes cases alleging false advertising, deceptive trade practices, and privacy violations under California’s UCL and CLRA, New York’s GBL, and other states’ laws. He is experienced at heading off cases before any complaint is filed, successfully dismissing complaints at the pleading stage, and defeating class certification. The Daily Journal has recognized Cort as achieving a “Top Verdict” and as one of California’s Top 100 lawyers, noting that “he has developed a track record of securing dismissals in consumer class action cases before discovery begins—a feat that remains uncommon in a practice area where courts typically allow plaintiffs broad latitude to develop their theories.” He is also an editor of the firm’s Inside Class Actions blog and regularly contributes analyses of new class action decisions and developments.

Cort is also a co-chair of the firm’s Cartel Defense Practice Group and represents companies and individuals facing criminal and civil antitrust investigations, including before the DOJ Antitrust Division and FTC. He has defended his clients in cases implicating the high-tech industry, alleged “no-poach” and wage-fixing agreements, price-fixing, and similar conduct. For his accomplishments, he has twice been recognized as a Top Antitrust Lawyer by the Daily Journal.

Cort maintains an active pro bono practice and is a co-chair of Covington’s CovPride Resource Group.

Watch: Cort provides insights on class action litigation, as part of our Navigating Class Actions video series.

 

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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.

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  • Posted in:
    Business and Commercial
  • Blog:
    Inside Class Actions
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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