Last month we reported on Curtis v. 7-Eleven, in which the Northern District of Illinois held that marking products as “recyclable” when they may not, as a practical matter, be recycled did not constitute consumer fraud because the fact that the material is capable of being recycled is not false or misleading.  This month, the Northern District of California came to the same conclusion.  In David Swartz, et al., v. The Coca-Cola Company, et al., No. 21-cv-04643 (N.D. Cal. Nov. 18, 2022), the Honorable James Donato of the United States District Court for the Northern District of California granted a motion to dismiss claims brought against defendants Coca-Cola, Blue Triton Brands, and Niagara Bottling (collectively the “Defendants”) by plaintiff individuals and Sierra Club (“Plaintiffs”).  Plaintiffs filed a complaint against Defendants alleging violations of California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, and that such violations constitute fraud, deceit, and/or misrepresentation and negligent misrepresentation.  Specifically, Plaintiffs alleged that the “100% recyclable” labels on single-use plastic bottles supplied by the Defendants were false and misleading because most plastic bottles are not recycled and instead end up in landfills or incinerators due to a lack of recycling capacity and a lack of demand for recycled plastics. 

In filing a complaint, plaintiffs “have 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.’”  Id., citing Cannara v. Nemeth, 467 F.Supp. 3d 877, 882 (N.D. Cal. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).  In dismissing the complaint, Judge Donato found that the complaint filed by Plaintiffs failed to meet this threshold requirement, as “[n]o reasonable consumer would understand ‘100% recyclable’ to mean that the entire product will always be recycled or that the product ‘is part of a circular plastics economy in which all bottles are recycled into new bottles… .”  Order Granting Mot. Dismiss.  Instead, a reasonable consumer would understand that making an object recyclable is just the first step in the process of converting waste into reusable material, and not a guarantee that the process will be completed. 

Judge Donato also found Plaintiffs’ interpretation of “recyclable” inconsistent with the Green Guides published by the Federal Trade Commission, which provide the standard for environmental marketing claims under California Law.  Specifically, Judge Donato found that whether a product is properly labeled “recyclable” under the Green Guides depends on whether it is comprised of materials that can be recycled, not, as Plaintiffs’ allege, on whether the product is actually converted into reusable material. 

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