Court Dismisses "100% Recyclable" Suit Against Coca-Cola . . . Again

Last week, the Northern District of California once again dismissed a putative class action lawsuit against Coca-Cola over bottles labeled "100% recyclable."

The first time around, the complaint alleged that the representation was misleading because "a reasonable consumer would understand '100% recyclable' to mean that the bottle will always be recycled or is 'part of a circular plastics economy in which all bottles are recycled into new bottles to be used again.'" The Court dismissed that complaint, finding that consumers would not interpret the claim in such a manner, because "'recyclable' in every day usage 'is an adjective that means capable of being recycled...or a noun that denominates an object that can be recycled...It does not mean a promise that an object will actually be recycled.'"

The second time around, the complaint alleged that "100% recyclable" means that "the entirety of the Product is comprised of material that can be recycled by existing recycling programs in California." Specifically, the complaint alleged that the bottles are not 100% recyclable in their entirety because a substantial majority of recycling programs in California do not recycle the bottles' caps or labels and "at least 28% of the total plastic materials in the bottles sent for recycling in California cannot be processed and end up in landfills or burned."

While the Court determined the updated allegations were based on an interpretation that is a "more reasonable understanding of how the 'recyclable' is used in every day speech" and also more consistent with the FTC's Green Guides (and California law, which incorporate the Green Guides), they once again dismissed the complaint. This time, the Court determined that the complaint did not provide facts supporting the allegations, stating that the figures asserted by the plaintiffs do not establish that recycling facilities that accept the bottle caps and labels are not available to 60% (the Green Guides standard for "substantial majority") of the consumers or commodities where the item is sold. 

The Court also took issue with the emphasis that the complaint put on the caps and labels themselves, noting that those elements are examples of "minor incidental components," and citing to the Green Guides for the proposition that "marketers can make unqualified recyclable claims for a product or package if the entire product or package, excluding minor incidental components, is recyclable." The Court rejected plaintiffs' argument that the "100%" language in the claim is misleading because it communicates that even the minor incidental components are recyclable, finding that nothing in the complaint demonstrates it is impossible to recycle the caps or labels.

The Court once again granted plaintiffs leave to amend their complaint, noting "this will likely be the final opportunity to amend."