A judge has dismissed the New York attorney general’s lawsuit against Pepsi over plastic waste

A state judge has dismissed a lawsuit filed by state Attorney General Letitia James that sought to hold Pepsi responsible for plastic that piled up on the banks of the Buffalo River.

The legal defeat comes amid growing concern about the environmental impact of plastic, which is often not recyclable, despite marketing claims to the contrary. Earlier this year, state lawmakers passed legislation requiring companies to reduce the amount of packaging they use, including plastics, by 30%.

But state Supreme Court Justice Emilio Kolaiakovo ruled that James unfairly targeted Pepsi and its subsidiary Frito Lay for alleged “public concern” caused by single-use plastics.

“Plastic packaging is used not only by Pepsi and Frito Lay. However, the Prosecutor General’s Office prosecuted only these defendants. Either this is a widespread problem and all offenders have contributed to this “public concern,” or this is nothing more than selective prosecution based on a naïve theory,” the judge wrote.

The judge was also skeptical of the attorney general’s argument that Pepsi should be held responsible for the trash thrown by people who bought its products.

“Instead of prosecuting those who committed the crime, the Attorney General wants to punish those who produce the discarded item. This theory has never been accepted by a court in this state or in any other,” Kolayakovo wrote.

When James filed her lawsuit in 2023, she touted it as a major effort to hold the corporate giant accountable for the microplastics that contaminate the water supply.

“No company is too big to guarantee that its products will not harm the environment and public health. All New Yorkers have a fundamental right to clean water, but PepsiCo’s irresponsible packaging and marketing is putting Buffalo’s water supply, environment and health at risk,” James said in a release at the time.

Her office has argued that microplastics and the chemicals they contain are linked to a wide range of health problems, including reproductive dysfunction and intestinal inflammation. If James is successful, the lawsuit would be an important legal victory amid growing concern about microplastics, including in the New York water supply.

As part of the lawsuit, the attorney general’s office conducted an investigation into pollution along the shoreline of the Buffalo River, an eight-mile waterway in Erie County with a watershed of approximately 450 square miles. The investigation found that more than 70% of the pollution was plastic, and the largest source of this waste was PepsiCo products, at just over 17%. McDonald’s took second place with almost 6% of plastic waste.

“By continuing to produce, manufacture, market, distribute and sell vast quantities of single-use plastic packaging, PepsiCo has contributed and continues to contribute significantly to the nuisances that harm the urban community. Buffalo and surrounding areas,” the complaint states. “PepsiCo’s plastic packaging also fails to warn the public or consumers that it may contribute to the pollution of waterways with plastic, nor does it warn the public or consumers of the potential harm caused by its packaging.”

The lawsuit alleges that the corporation deliberately continued to produce more plastic packaging without looking for viable alternatives. According to the lawsuit, in 2022 Pepsi produced enough single-use packaging to weigh more than seven Empire State Buildings.

“Plastic pollution is a serious threat to our planet and our health,” wrote James’ spokeswoman Sophie Hamlin. “We are disappointed by this decision and are reviewing our options, but remain committed to protecting communities from the dangers of plastic pollution.”

The Buffalo River was once one of the most polluted waterways in the United States. In the late 1800s and early 1900s, grain milling and manufacturing on the banks polluted the river to such a degree that all the fish there were believed to have died.

Restoration of the Buffalo River began in the late 1980s. More than a million cubic yards of contaminated sediment was removed from the river at a cost of $45 million. The program also restored aquatic vegetation to bring back fish such as walleye, perch and trout.

When fish consume plastic, they can reason intestinal damage and death. Plastic also moves up the food chain to larger animals that consume fish, including humans.

“PepsiCo continues to take plastic reduction and efficient recycling seriously,” the company wrote in an emailed statement. “We will continue to work with key partners to promote smart collection policies, improve recycling infrastructure, raise consumer awareness of the importance of recycling and build partnerships focused on reducing waste and exploring innovative solutions to plastic pollution.”