BUFFALO, N.Y. — A New York State Supreme Court justice has dismissed a lawsuit suit filed in Buffalo last November by NY State Attorney General Letitia James against PepsiCo and its subsidiary Frito Lay in which she sought to hold the food and beverage giant responsible for plastic pollution accumulated in the Buffalo River.
While the AG never accused the defendants of polluting the waterways themselves, she argued they should be responsible for the conduct of third-parties who have discarded their products in the waterway.
Pepsi/Frito Lay had argued that there was no basis for the Attorney General to commence the action while insisting that they should not be held liable for people littering.
The judge agrees with Pepsi/Frito Lay
Justice Emilio Colaiacovo thoroughly rejected each and every claim made by James in the lawsuit.
"It is important to note that Pepsi/Frito Lay did not pollute the Buffalo River or any other local waterways. Other people did!" wrote the judge, who ruled that Pepsi/Frito Lay could not be held liable for the acts of others, nor punished "for the acts of third parties who ignore laws that already exist prohibiting littering. Instead of pursuing those who commit the act, the Attorney General 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 concluded his 19-page decision by writing: "While I can think of no reasonable person who does not believe in the imperatives of recycling and being better stewards of our environment, this does not give rise to phantom assertions of liability that do nothing to solve the problem that exists. The judicial system should not be burdened with predatory lawsuits that seek to impose punishment while searching for a crime."
Colaiacovo further wrote that Attorney General James' "proposed use of the judicial system to punish select purported offenders for what she believes to be a righteous cause risks transforming the judiciary into an arm of the legislature, or at the very least a passive partner in expanding duties that strain the bedrock of well-established law for policy purposes."
No causes for action
When she announced her lawsuit at Canalside in downtown Buffalo on Nov. 15, 2023, James had claimed her office conducted a survey of plastic pollution which showed "PepsiCo's plastic packaging far exceeded any other source of identifiable plastic waste," and that, through its continued manufacture and distribution of single-use plastic packaging, contributed to a public nuisance by facilitating the contamination of local water ways
Pepsi/Frito Lay, in it response to the lawsuit, stated "never before has a manufacturer of a safe and lawful product been held liable under New York (or any other) law for the independent decisions of third parties who choose to dispose of the product's packaging improperly (and unlawfully)." With respect to the public nuisance argument, Pepsi/Frito Lay argued that the disposal of the waste is not in their control and, as such, cannot be construed as a public nuisance caused or created by them. Further, Pepsi/Frito Lay state that there is no law or duty to limit the use of plastic packaging, insisting further that any requirement for them to do that would have to come from a legislative process, and not the province of the Attorney General.
In addition, the company argued that the intended use of the plastic packaging is not to pollute the environment, and if used responsibly by consumers, the environment and surrounding ecosystems would not be negatively impacted
Here again, the judge agreed with the company.
While James argued the that defendants knew or should have foreseen that their plastic packaging would end up as litter and would therefore "damage the public", the judge said she not only failed to provide any evidence to support that allegation, but further that casual references to "studies" and "surveys" by James also failed to provide discernible proof that this would be the case.
The judge also cited a previous case brought by then NY Attorney General Elliot Spitzer against gun manufacturer Ruger, in which he argued that illegally possessed handguns constituted a public nuisance and that the manufacturer contributed to that public nuisance because they should have known that their product would fall into the hands of individuals who would use it to perpetuate crimes.
That complaint, like this one, was dismissed by a judge whose decision was upheld by the State Supreme Court Appellate Division's 1st Department, which ruled that to pursue purported offenders without a statutory framework from which to impose liability would "likely open the courthouse doors to a flood of limitless similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities."
In dismissing the case against Pepsi/Frito Lay, Justice Colaiacovo inferred that Attorney General James should have learned something from that case.
"The First Department's warnings could not be more prescient. This is exactly what the Attorney General seeks to do today. lf permitted, no Defendant would be safe from a race to penalize a party notwithstanding the tack of executive order or legislative law that property establishes a basis upon which an entity may be subject to civil punishment. "The foreshadowing is altogether more troubling since this Plaintiff, (the Attorney General) who was a party to Ruger, chose to ignore this holding and pursued these Defendants in spite of it, at great cost."
Colaiacovo wrote further: "Essential to demonstrating the viability of a public nuisance claim is to show that the product in question is defective or unlawful. Plaintiff has failed to demonstrate either. While no one doubts the harm litter and waste cause in our ecosystem, this does not create a civil cause of action from which to punish Pepsi/Frito Lay. 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."
In another rejected argument, James attempted to invoke the Green Amendment to the state's which establishes the right to clean water, clean air, and a heathy environment.
But while noting James was unable to reference any statutory obligations that the defendants violated by producing bottles and plastic wrappings, the judge also noted, "lf courts refused to impose a duty of care on firearm manufacturers, it is difficult to see how imposing such a restriction on those who produce bottles and wrappers is viable, especially when considering they seem to be the only ones in the cross hairs of this action, despite the thousands of other producers of the same materials who have seemingly escaped such scrutiny. Imposing civil liability on a manufacturer for the acts of a third party seems contrary to every norm of established jurisprudence. lt is not difficult to imagine the lengths prosecuting agencies would take this theory, if adopted, to punish manufacturers for the acts of others who buy their products and then, throw them in a nearby body of water."
Case dismissed
James also alleged that Pepsi/Frito Lay has engaged in deceptive practices by selling products that fail to include warnings about the known and foreseeable risks that follow from the intended use, and thus committed fraud and profited from those fraudulent acts.
In rejecting her claims, Justice Colaiacovo said those allegations "strain the bounds of credulity."
"To be liable for deceptive or misleading conduct, the moving party must demonstrate that the Defendant engaged in materially misleading acts and that that they were likely to mislead the consumer. Here, the Plaintiff has demonstrated neither."
James had suggested the company was being deceptive by pledging to work to reduce its manufacture and distribution of single use plastics, but failed to do so.
But as the judge noted, it was under no legal obligation to do so.
"As the Defendants rightly note, a representation or a prediction of something which is hoped or expected to occur in the future is not a misrepresentation of fact. Plaintiff seeks to impose a regulatory burden on Defendants that does not exist. Instead, the complaint is replete with general and conclusory allegations that the Defendants made "false representations."
The judge also noted: "If Pepsi/Frito Lay used a reduced amount of plastic, there is no way of knowing that these items would not have been similarly discarded in the water. The Attorney General's allegations are speculative. "This lawsuit is simply policy idealism. ln the absence of any actual false representations or statutory obligation that the Defendants are bound by that they otherwise failed to comply with, the Defendants' motion to dismiss this cause of action is hereby GRANTED."
The parties react
In a statement the company wrote:
PepsiCo is pleased with the Court’s ruling in favor of our motion to dismiss the New York Attorney General’s case. We believe that our time, attention and resources -- and those of other key stakeholders -- are best directed toward collaborative solutions.
For our part, PepsiCo remains serious about plastic reduction and effective recycling. 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.
In a statement from the NY State Attorney General's office, a spokesperson wrote:
“Plastic pollution poses a major threat to our planet and our public health. We are disappointed in this decision and are reviewing our options but remain committed to protecting communities from the dangers of plastic pollution.”