Swartz et al v. The Coca-Cola Company et al

Filing 99

ORDER RE MOTION TO DISMISS. Signed by Judge James Donato on 11/18/2022. (jdlc1, COURT STAFF) (Filed on 11/18/2022)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID SWARTZ, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 21-cv-04643-JD
ORDER RE MOTION TO DISMISS

v.
THE COCA-COLA COMPANY, et al.,
Defendants.

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Plaintiffs David Swartz, Marcelo Muto, Cristina Salgado, and the Sierra Club allege that

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the “100% recyclable” labels on single-use plastic bottles supplied by defendants Coca-Cola, Blue

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Triton Brands, and Niagara Bottling, are false and misleading because most plastic bottles are not

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recycled. Dkt. No. 74 ¶¶ 3-4. Plaintiffs say the bottles end up in landfills or incinerators due to a

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lack of recycling capacity and a lack of demand for recycled plastics. Id. ¶¶ 42-44, 50. They

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allege that the “100% recyclable” labels violate California’s Consumer Legal Remedies Act, False

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Advertising Law, and Unfair Competition Law, and constitute fraud, deceit, and/or

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misrepresentation, and negligent misrepresentation. Id. ¶ 106, 115, 125-33, 135-41, 144.

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Defendants have asked to dismiss the consolidated amended complaint (CAC) under

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Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. Nos. 75-77. The parties’ familiarity

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with the record is assumed, and the CAC is dismissed.

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While it is true that the question of consumer deception may be a factual matter unsuitable

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for resolution in a motion to dismiss, see Milan v. Clif Bar & Co., No. 18-cv-02354-JD, 2019 WL

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3934918, at *2 (N.D. Cal. Aug. 20, 2019), plaintiffs still have the initial burden of pleading

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“factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged” as informed by “judicial experience and common sense.” Cannara v.

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Nemeth, 467 F. Supp. 3d 877, 882 (N.D. Cal. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-

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79 (2009)), aff’d, 21 F.4th 1169 (9th Cir. 2021); see also Yoshida v. Campbell Soup Co., No. 21-

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cv-9458-JD, 2022 WL 1819528, at *1 (N.D. Cal. May 27, 2022). The CAC stumbles on this

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threshold requirement.

United States District Court
Northern District of California

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No reasonable consumer would understand “100% recyclable” to mean that the entire

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product will always be recycled or that the product is “part of a circular plastics economy in which

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all bottles are recycled into new bottles to be used again.” Dkt. No. 74 ¶ 66. In everyday usage,

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“recyclable” is an adjective that means capable of being recycled (e.g., “the plate is made of

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recyclable paper”), or a noun that denominates an object that can be recycled (e.g., “the students

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raised funds by selling recyclables to disposal facilities”). It does not mean a promise that an

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object will actually be recycled, as plaintiffs would have it. The allegation that defendants

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advertised recyclable bottles as part of a “circular plastics economy” does not plausibly establish

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that a reasonable consumer would interpret “recyclable” in the exaggerated manner that plaintiffs

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suggest. See id. ¶ 58; see also Becerra v. Dr Pepper / Seven Up, Inc., 945 F.3d 1225, 1230 (9th

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Cir. 2019) (the word “diet” is not an “implicit weight-loss promise”). If anything, a reasonable

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consumer would understand that making an object recyclable is just the first step in the process of

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converting waste into reusable material, and not a guarantee that the process will be completed.

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Plaintiffs’ interpretation of “recyclable” is also inconsistent with California and federal

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law. The Green Guides published by the Federal Trade Commission provide the standard for

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environmental marketing claims under California law. See Cal Bus. & Prof. Code § 17580.5. The

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Green Guides permit marketing a product as “recyclable” if the product “can be collected,

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separated, or otherwise recovered from the waste stream through an established recycling program

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for reuse or use in manufacturing or assembling another item.” 16 C.F.R. § 260.12(a).

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Unqualified recyclable claims are permissible if recycling facilities are available to at least 60%

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“of consumers or communities where the item is sold.” Id. § 260.12(b)(1). In other words,

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whether a product is properly labeled “recyclable” under the Green Guides depends on whether it

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is comprised of materials that can be recycled by existing recycling programs--not, as plaintiffs

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say, on whether the product is converted into reusable material.
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United States District Court
Northern District of California

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Plaintiffs do not plausibly allege that defendants’ representations deviate from the

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commonly understood meaning of recyclable or the Green Guides definition. The CAC

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acknowledges that defendants’ bottles “may be accepted for recycling by some curbside

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programs,” and that consumers and communities in California have access to at least 75 Materials

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Recovery Facilities (MRFs) that process the plastics that comprise the bottles. Dkt. No. 74 ¶¶ 41-

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43, 50. The CAC cites to reports about a nationwide lack of recycling infrastructure, capacity, and

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demand, but it alleges no facts about the processing capabilities of MRFs in California and never

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alleges that any MRFs reject defendants’ products. See id. ¶¶ 42-46, 50. The CAC claims that

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defendants’ bottle caps and labels are comprised of types of plastic that are commonly landfilled

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or incinerated by MRFs because there is no demand for the recycled products. Id. ¶¶ 43-44. But

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that does not establish that the caps and labels are not capable of being recycled or that they are

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not accepted by existing recycling programs.

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The CAC is dismissed. Plaintiffs may file an amended complaint by December 9, 2022.

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The amended complaint must be consistent with this order and may not add any new claims or

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parties without the Court’s prior approval. This will likely be the last opportunity to amend.

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Failure to amend by the deadline will result in dismissal with prejudice under Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: November 18, 2022

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JAMES DONATO
United States District Judge

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