Today’s case is not a drug or device case, but its holding is helpful to our clients who face state law nuisance claims arising from the acts of third parties.

This case was brought by the New York Attorney General against PepsiCo and FritoLay, alleging a nuisance from their single-use plastic packaging discarded in the Buffalo River. People by James v. PepsiCo, Inc., No. 814682/2023, 2024 WL 4685935 (N.Y. Sup. Ct. Oct. 31, 2024). The AG did not allege that PepsiCo or FritoLay themselves had thrown waste into the river.  Rather, the AG alleged that it had conducted a survey of plastic pollution and found that PepsiCo’s plastic pollution far exceeded any other source, more than 3 times that of the next contributor (McDonald’s).  The AG alleged that Pepsi/Frito Lay knew of what they called a “plastic pollution crisis”; that they failed to abate the harm or warn the public that its packaging is a source of plastic pollution and presents a risk of harm to human health and the environment; and that they misled the public about efforts to combat plastic pollution.  These actions, the AG alleged, contributed to a public nuisance and constituted deceptive and misleading statements. Rejecting all these arguments, the court granted PepsiCo/Frito-Lay’s motion to dismiss in the entirety.

First, the court declined to hold PepsiCo/Frito-Lay responsible for any alleged public nuisance. Relying on appellate precedent declining to hold firearms manufacturers liable in nuisance, the court rejected a holding that would “open the courthouse doors to a flood of limitless similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.”  Id. at *4 (quoting People c. Sturm, Ruger & Co., 309 A.D.2d 91, 97 (1st Dept. 2003)).  As the court observed in the firearms case, such a holding would allow litigation “to address a myriad of societal problems–real, perceived or imagined–regardless of the distance between the ‘causes’ of the ‘problems’ and their alleged consequences, and without any deference to proximate cause.”  Ruger, 309 A.D.2d at 104-05.  It would result in an “explosion” of litigation on issues “which the legislative and executive branches are vastly better designed, equipped and funded to address.”  Id.

The court also observed that “[e]ssential to demonstrating the viability of a public nuisance claim is to show that the product in question is defective or unlawful. Plaintiff has failed to demonstrate either.”  PepsiCo, 2024 WL 4685935, *5.  The products themselves were not defective, nor was there anything unlawful about producing plastic bottles and wrappings.  Absent such unlawful action, there was no duty owed. 

Nor did PepsiCo/Frito-Lay have any control over the litterbugs.  As the court noted, “[i]mposing civil liability on a manufacturer for the acts of a third party seems contrary to every norm of established jurisprudence.”  Id.  PepsiCo/Frito-Lay could not be held responsible for the acts of others who ignored invitations to recycle found on plastic containers and ignored laws against littering.  And even assuming that Defendants were aware of the hazards of plastic pollution, there was still no duty to warn.  New York law does not impose a duty on a manufacturer to stop the lawful distribution of a non-defective product, and it is unreasonable to impose a duty where one has no power to prevent the conduct of another.

The court also dismissed the AG’s deceptive trade practices act claim.  The AG failed to plead a materially misleading act likely to mislead the consumer.  As the court already held, there was no affirmative obligation to provide any warning.  Defendants simply promising to reduce their use of plastics did not amount to a deception—a representation about something hoped or expected to occur in the future does not constitute a misrepresentation of fact. Declaring this lawsuit “simply policy idealism,” id. at *7, the court dismissed the claim.  The court similarly dismissed any claim for fraud as not pled with particularity.

The court lobbed its final parting shot for the AG, stating:

While I can think of no reasonable person who does not believe in the imperatives of recycling and being better stewards of our environment, this does not give rise to phantom assertions of liability that do nothing to solve the problem that exists. This is a purely legislative or executive function to ameliorate and the judicial system should not be burdened with predatory lawsuits that seek to impose punishment while searching for a crime. Plaintiff’s proposed use of the judicial system to punish select purported offenders for what she believes to be a righteous cause risks transforming the judiciary into an arm of the legislature, or at the very least a passive partner in expanding duties that strain the bedrock of well-established law for policy purposes.

Id. at *7. 

This decision is a good arrow in the quiver of any defendant seeking to defend against policy-based expansion of state nuisance law.