Single-use plastic water bottles sold by the Coca-Cola Company, Nestlé Waters successor BlueTriton Brands and Niagara Bottling are not “100% recyclable” as the companies claim—and may be barely recyclable at all, a proposed class action says.
In truth, the defendants’ single-use plastics cause significant environmental damage—even when properly disposed of—and are likely to end up in landfills given they’re mostly unable to be reprocessed into usable materials, the complaint charges.
The 40-page lawsuit contends the defendants intentionally failed to provide the public with the information they needed to decide which products are truly sustainable and falsely led consumers to believe that they’re making the environmentally responsible choice when they buy and dispose of the companies’ plastic bottles in a recycling bin.
“Defendants’ representations that the Products are recyclable are material, false, misleading, and likely to deceive members of the public,” the complaint claims. “These representations also violate California’s legislatively declared policy against misrepresenting the environmental attributes of products.”
The lawsuit, filed in California’s Northern District on June 16, aims to secure an injunction precluding Coca-Cola, BlueTriton and Niagara from selling plastic water bottles unless the products’ labeling and marketing is modified to leave out the “100% recyclable” representation. It also looks to require the companies to give consumers a portion of their money back.
The case spotlights Coca-Cola's Dasani brand, and the Arrowhead, Poland Spring, Ozarka and Deer Park bottled waters sold by BlueTriton (Nestlé). Also mentioned in the lawsuit are the Niagara, Costco Kirkland, Save Mart Sunny Select and Save Mart Market Essentials bottled water.
Billions and billions (and billions)
Americans consume water by way of disposable plastic bottles at a rate of more than 70 million each day, the suit begins. Coca-Cola, BlueTriton and Niagara, for their part, produce more than 100 billion single-use plastic bottles every year, amounting to 3,400 bottles per second, the case says.
Each day, however, more than 60 million plastic bottles, including those the defendants tout as “100% recyclable,” end up in landfills or incinerators, while 12 million tons of plastic finds its way into the ocean annually, the complaint states.
With consumers becoming increasingly aware of the harm associated with plastic pollution, many actively seek to buy products that are either compostable or recyclable so as to not contribute to the waste that ends up in waterways, oceans, landfills and incinerators, the suit reads.
Per the lawsuit, the plastic waste problem was exacerbated in 2018 when China implemented a ban on the import of plastic waste from the United States. The policy, dubbed National Sword, has permanently altered how the United States processes recycling as municipalities have been forced to find new ways to manage plastic waste, a task far easier said than done, the case asserts.
“In most cases, they have been forced to burn or incinerate plastics because there is no longer a foreign market for the overwhelming majority of plastic sent for recycling,” the complaint says.
The defendants, too, have had to pivot in response to not only China’s National Sword policy but pressure from environmental organizations, including the Sierra Club and Greenpeace, who’ve sought to inform the public that reusable bottles are the only true sustainable choice, per the case. The lawsuit says Coca-Cola, BlueTriton and Niagara, concerned about this sustainability message and in search of a way to reassure the public on single-use plastics, rolled out an initiative titled “Every Bottle Back” that centered on the marketing claim that each plastic bottle produced by the companies is “100% recyclable.”
Lawsuit: Water bottle composition makes them largely unrecyclable, and facilities can’t keep up
Despite the defendants’ marketing claims, their single-use plastic water bottles are not “100% recyclable” due in large part to their chemical makeup.
Each product consists of three basic components: the bottle, the bottle cap and the label wrapped around the bottle. The bottles, according to the suit, are made of polyethylene terephthalate (PET, #1 plastic). The products’ bottle caps are made from polypropylene (PP, #5 plastic) or high-density polyethylene (HDPE, #2 plastic), and the bottles’ labels are made from biaxially oriented polypropylene (BOPP), a form of polypropylene, the lawsuit says.
According to the complaint, the bottles’ plastic labels and polypropylene caps are not recyclable and cannot be processed into useable materials. Further, “at least 28%” of the PET bottles and HDPE caps sent to recycling centers end up “lost in processing” or are contaminated and thus end up in landfills or burned.
Lastly, the broader issue, the suit says, is that recycling facilities in the United States only have the capacity to process a relatively small percentage of the PET and HDPE consumed nationwide.
After plastic bottles in California are discarded into a recycling bin, they’re sent to a materials recovery facility (MRF), which, according to the suit, operates as follows:
A typical MRF first sorts the plastic bottles based on color and, sometimes, size. At this point, the plastic bottles, bottle caps and labels are comingled. Once sorted, the comingled plastic is typically next shredded into smaller pieces and sent to a wash station. During the washing phase, the comingled shredded plastic is separated via a sink float separation tank, where the PET plastic, which is denser than water, sinks and the HDPE and PP plastics, which are less dense than water, float. Finally, the separated shredded plastic is then processed into ‘clean flake’ material or plastic resin for use in manufacturing or assembling another item.”
Although PET and HDPE are widely considered to be the most recyclable forms of plastic, recent data published in a Greenpeace study indicates that domestic materials recovery facilities can only process into plastic resin approximately 22.5 percent of the total post-consumer PET plastic waste generated and 12 percent of the total post-consumer HDPE plastic waste generated. Moreover, as a result of contamination and processing losses, not all PET and HDPE material processed by these facilities is actually converted into “clean flake” to reuse (emphasis ours):
About a third of the collected PET and HDPE material processed by MRFs is not converted into ‘clean flake,’ and is instead, landfilled or incinerated. Accordingly, the Products’ PET bottles and HDPE bottle caps are not ‘100% Recyclable’ because: (i) the United States lacks the capacity to process 77.5% of all PET and 88% of all HDPE plastic waste generated; and (ii) of the plastic that is processed by MRFs, only about 70% of the PET and HDPE is converted into clean flakes for reuse.”
The suit adds that very little demand exists for recycled PP and BOPP plastic due to the availability of raw materials to make “virgin plastic,” which the case says is cheaper to use given it’s derived from oil and natural gas. A consequence of this, according to the lawsuit, is that recycling facilities cannot shoulder the cost of breaking down and reconstituting recycled PP and BOPP plastic “because there are almost no buyers of the resulting plastic, pellets or scrap materials.”
Thus, the Products’ PP bottle caps and BOPP labels are not ‘100% Recyclable’ because those materials are not processed into reusable material, and are instead, sent to incinerators or landfills.”
Every bottle back?
Despite being aware for decades that the majority of plastic is not recyclable, the defendants have falsely led the public to believe that they’re making the environmentally responsible choice when they buy and later dispose of Coca-Cola, BlueTriton and/or Niagara’s plastic water bottles in a recycling bin, the lawsuit alleges. Per the complaint, the oil industry’s early effort to convince the public on the recyclability of plastic was soon taken up and supported by companies like the defendants:
[U]ntil recently, Coca-Cola was a major financial supporter of the Plastics Industry Association (PLASTICS). PLASTICS is a trade association that has lobbied against bans on single-use plastic, arguing that the problem of plastic waste is ‘behavioral rather than [a] material issue’ because single-use plastics are 100% Recyclable. Though PLASTICS keeps its membership rolls secret, major companies have been outed over the years for their support of the organization.”
Today, the defendants’ strategy of convincing the public that plastic bottles are 100-percent recyclable while increasing profits by selling new plastics “remain[s] unchanged,” the complaint says, noting demand for single-use plastic bottles skyrocketed amid fears during the COVID-19 pandemic that reusable products could increase one’s risk of contracting the virus.
Of the defendants’ “Every Bottle Back” campaign, the lawsuit claims it’s no more than an effort to capitalize on consumers’ demand for “green” products:
Defendants’ coordinated and illegal marketing campaign has been extremely successful. Defendants collectively sell a large percentage of the bottled water sold in the United States. The Products are sold in grocery stores, gas stations, and big box stores throughout California and the country. Because of the big potential for sales, Defendants have no incentive to stop claiming that the Products are ‘100% Recyclable’ or change their disclaimers to discourage sales.”
Who’s covered by the lawsuit?
The case looks to cover all persons who, between June 16, 2017 and the present, bought any of the products detailed above in California. (Find out why you don’t have to do anything to join a class action lawsuit here.)
What if I don’t live in California?
If you don’t live in California and are interested in taking legal action, you may want to reach out to an attorney in your area to start a class action lawsuit. It’s possible that other cases covering wider groups of “100% recyclable” plastic bottle buyers could be filed in the future.
If you believe you’ve been affected by a company’s alleged conduct, stay informed and check back with ClassAction.org for updates. You can sign up for our free weekly newsletter here.