Swartz v. Coca-Cola Co.

Swartz v. Coca-Cola Co.

Opinion

ORDER RE MOTION TO DISMISS

Plaintiffs David Swartz, Marcelo Muto, Cristina Salgado, and the Sierra Club allege that the "100% recyclable" labels on single-use plastic bottles supplied by defendants Coca-Cola, Blue Triton Brands, and Niagara Bottling, are false and misleading because most plastic bottles are not recycled. Dkt. No. 74 ¶¶ 3-4. Plaintiffs say the bottles end up in landfills or incinerators due to a lack of recycling capacity and a lack of demand for recycled plastics. Id. ¶¶ 42-44, 50. They allege that the "100% recyclable" labels violate California's Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, and constitute fraud, deceit, and/or misrepresentation, and negligent misrepresentation. Id. ¶ 106, 115, 125-33, 135-41, 144.

Defendants have asked to dismiss the consolidated amended complaint (CAC) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. Nos. 75-77. The parties' familiarity with the record is assumed, and the CAC is dismissed.

While it is true that the question of consumer deception may be a factual matter unsuitable [*3]  for resolution in a motion to dismiss, see Milan v. Clif Bar & Co., No. 18-cv-02354-JD, 2019 U.S. Dist. LEXIS 141403, 2019 WL 3934918, at *2 (N.D. Cal. Aug. 20, 2019), plaintiffs still 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." Cannara v. Nemeth, 467 F. Supp. 3d 877, 882 (N.D. Cal. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)), aff'd, 21 F.4th 1169 (9th Cir. 2021); see also Yoshida v. Campbell Soup Co., No. 21-cv-9458-JD, 2022 U.S. Dist. LEXIS 95674, 2022 WL 1819528, at *1 (N.D. Cal. May 27, 2022). The CAC stumbles on this threshold requirement.

No 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 to be used again." Dkt. No. 74 ¶ 66. In everyday usage, "recyclable" is an adjective that means capable of being recycled (e.g., "the plate is made of recyclable paper"), or a noun that denominates an object that can be recycled (e.g., "the students raised funds by selling recyclables to disposal facilities"). It does not mean a promise that an object will actually be recycled, as plaintiffs would have it. The allegation that defendants advertised recyclable bottles as part of a "circular plastics economy" does not plausibly establish that a reasonable consumer would interpret "recyclable" in the exaggerated [*4]  manner that plaintiffs suggest. See id. ¶ 58; see also Becerra v. Dr Pepper / Seven Up, Inc., 945 F.3d 1225, 1230 (9th Cir. 2019) (the word "diet" is not an "implicit weight-loss promise"). If anything, 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.

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