The state of New York has sued PepsiCo and Frito-Lay, its subsidiary, based on its belief that the snack company’s plastic bottles, caps, and wrappers are polluting the environment and endangering public health in the state. PepsiCo produces Pepsi cola, Lay’s potato chips, Quaker Oats, Gatorade, Tostios, Doritos, Starbucks packaged drinks, and more.
According to the complaint, of the trash found in and near Buffalo River that could be traced back to specific brands, PepsiCo is the single largest identifiable contributor (17.1%) and is responsible for three times more identifiable plastic waste than the next highest contributor (McDonald’s, 5.7%).
Among other concerns, New York Attorney General Letitia James warns that plastic pollution of this kind can break down and enter drinking water, which may lead to health problems. New York also argues that the plastic harms freshwater species, endangers the ecosystem, interferes with the public’s use and enjoyment of the river, and negatively impacts the aesthetic value of the river and shoreline.
New York asserts that PepsiCo, having produced about 5.7 million pounds of plastic packaging in 2022, acknowledges on its website that there is a “plastic pollution crisis” to which its own packaging might contribute. The complaint argues that instead of fixing the problem or warning the public, Pepsi chose to mislead consumers and increase production.
The suit is based on the common law claim of public nuisance, a strict products liability failure to warn claim, New York General Business Law § 349, which prohibits deceptive acts or practices by businesses in the state, and New York Executive Law § 63(12), which allows the Attorney General to bring a proceeding for repeated or otherwise persistent fraudulent or illegal acts done in the carrying on of business.
The Buffalo River, once considered one of the most polluted rivers in the country, received substantial investment and attention to restore its ecosystem starting in 1989, according to the complaint. However, PepsiCo’s plastic packaging has become a large contributor to the plastic pollution now affecting the Buffalo River, says New York.
Cleanup volunteers have recorded the types of trash found in the Buffalo River watershed since 2008. According to the data in the complaint, about 78 percent of the items collected between 2013 and 2022 were plastic. While cigarette butts were recorded the most, says the complaint, the combination of plastic beverage bottles, food wrappers, and bottle caps “heavily outweighs cigarette butts in terms of contribution of plastic mass into the environment.”
The complaint cites studies by non-governmental organizations that have also found PepsiCo products to be the most or the second most abundant type of plastic waste in national parks and across the United States when a brand could be identified.
The complaint asserts that the public has undertaken additional costly measures to combat the plastic pollution in and around the Buffalo River, including providing $8.6 million to help construct an $18 million facility to capture floatable waste, like plastic.
PepsiCo’s misleading statements, according to the complaint, include deliberately misleading impressions that some or all of the types of plastic resins it uses are infinitely recyclable when the reality is that PepsiCo’s food wrappers are not at all recyclable and its PET bottles can only be recycled so many times before the plastic degrades to a point where it cannot be used again for that purpose. The complaint also points out that PepsiCo has continually missed its virgin plastic reduction targets, in fact actually increasing its use of virgin plastic every year for the past four years.
Additional Reading
New York sues PepsiCo in effort to hold it responsible for the litter that winds up in rivers, AP News (November 15, 2023)
New York sues PepsiCo over plastics it says pollute, hurt health, Reuters (November 15, 2023)
New York v. PepsiCo, Inc. Complaint
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