Growing Use of Public Nuisance Theories: New York’s Plastics Pollution Claim Against PepsiCo

On November 15, 2023, the Attorney General of New York filed suit against PepsiCo, Inc., seeking to hold the soft drink and snack food manufacturer liable for plastic waste on the shores of the Buffalo River under multiple theories including public nuisance, strict product liability for failure to warn, violation of New York General Business Law Section 349 (deceptive trade practices) and New York Executive Law Section 63 (12) (persistent fraud or illegality in conduct of business).  

The complaint alleges that PepsiCo relies on the production of single-use plastic for its packaging, which are discarded immediately after the beverage or snack is consumed.  It asserts that single-use plastic items are the dominant form of pollution on the Buffalo River, and that PepsiCo’s plastic packaging thus contaminates the river and public drinking water supplies, threatens public health, endangers the ecosystem, and interferes with the public’s use and enjoyment of the Buffalo River by adversely affecting its aesthetic value. 

The complaint states that plastic pollution now overwhelms other types of waste pollution around the country, including at national parks, and that PepsiCo products are a lead contributor to such waste.  It asserts that, based on a 2022 analysis, 17.3% of identifiable plastic waste found along the Buffalo River was produced by PepsiCo, which was more than three times more than any other identifiable brand.

The First Cause of Action is for public nuisance under New York law.  It claims that PepsiCo’s widespread plastic pollution in the Buffalo River has created or contributed to a public nuisance by substantially interfering with “a common right of people living in the City of Buffalo and its surrounding areas, interfering with the use by the public of public spaces, and/or endangering or injuring the property, health, safety or comfort of a considerable number of persons.”   The complaint alleges that PepsiCo has been aware of the harms caused by the accumulation of plastic waste in the environment, and its own contribution to the problem, and that PepsiCo has not only not done enough to abate the harm, it has misled the public about its efforts to combat plastic pollution, and failed to include a warning on its plastic packaging stating that the packaging is a potential source of plastic pollution and presents a risk of harm to human health and the environment.  As backdrop to its public nuisance count, the complaint notes that on November 2021, New York citizens amended the state Constitution to provide that “Each person shall have a right to clean air and water, and to a healthful environment.”  The complaint also includes Causes of Action for failure to warn, deceptive trade practices and persistent fraud or illegality in the conduct of business.

The complaint asks the Court to direct PepsiCo to take reasonable efforts to abate the public nuisance (i) by undertaking studies to identify the extent of plastic pollution and actions necessary to remediate it and to implement those remedial actions, or (ii) by endowing an abatement fund with sufficient capital to eliminate the nuisance.  The State further seeks to enjoin Pepsi to take reasonable best efforts to prevent further contributing to the plastic pollution, declare that Pepsi has failed to adequately warn of the dangers of single-use plastic pollution and require it to place a warning on its single-use plastic items of the dangers of its packaging, and to enjoin PepsiCo from selling or distributing any product in the Buffalo region that does not contain such warning.  In addition, the lawsuit seeks an award of compensatory damages for the harm done to the Buffalo River and to the citizens and inhabitants of the City of Buffalo, as well as restitution or civil penalties for deceptive acts under New York General Business Law §349, and disgorgement of “all revenues, profits and gains wrongfully derived” on account of repeated and persistent unlawful acts.

The New York AG’s lawsuit against PepsiCo is the latest use of public nuisance in a chain of litigation by state governmental entities seeking to force solutions to societal problems, from attempts to address the opioid crisis to climate change.