On September 16, 2024, the NAM file dan amicus brief in support of the California Court of Appeal reviewing a trial court decision holding that defendants can be subject to public nuisance liability for participating in the state’s recycling initiatives and properly labeling their products in accordance with that program. In this case, Earth Island Institute filed a tort lawsuit against nearly a dozen different food and beverage and consumer goods companies for labeling their product packaging as recyclable. According to Earth Island, this labeling has contributed to marine plastic pollution and encouraged consumers to use the products in a way that contributed to a public hazard. The trial court concluded that Earth Island stated a public nuisance claim and denied Defendants request to dismiss that claim. Defendants have petitioned the Court of Appeal to review that decision.
In our amicus brief in support of review, we explain that the conduct at issue in the case is not only lawful but encouraged by federal, state and local law. If allowed to stand, the ruling will dramatically expand the scope of public nuisance liability to cover virtually any marketing of any product that might be misused in a way that results in some harm to others or the environment. Further, the trial court’s ruling would allow Earth Island to impose its policy preferences outside the checks and balances of the legislative process.
Unfortunately, on October 3, 2024, the Court of Appeal denied the petition.