James V Pepsi

CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.
INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/15/2023
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE
PEOPLE OF THE STATE OF NEW YORK,

by Letitia James, Attorney General of the
State of New York,
COMPLAINT
Plaintiff,
Index No. ____________
- against -
PEPSICO, INC.; FRITO-LAY, INC.; FRITO-

LAY NORTH AMERICA, INC.,
Defendants.
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 39
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TABLE OF CONTENTS
NATURE OF THE ACTION ......................................................................................... 1
PARTIES ........................................................................................................................ 4
JURISDICTION AND VENUE ..................................................................................... 6
LEGAL FRAMEWORK ................................................................................................. 6
FACTS ............................................................................................................................ 7
A. The Buffalo River ................................................................................................. 7
B. PepsiCo’s Plastic Packaging in the Buffalo River and Along Its Shoreline .... 10
C. The Harms Caused by PepsiCo’s Plastic Packaging ........................................ 17
D. PepsiCo’s Misleading Statements and Failure to Warn .................................. 25
FIRST CAUSE OF ACTION

Public Nuisance..................................................................................................... 31
SECOND CAUSE OF ACTION

Strict Products Liability: Failure to Warn ........................................................... 32
THIRD CAUSE OF ACTION

Violation of New York General Business Law § 349 ........................................... 33
FOURTH CAUSE OF ACTION

Repeated and Persistent Illegality in Violation of New York Executive Law
§ 63(12) .................................................................................................................. 34
ii
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
Plaintiffs, the People of the State of New York, by their Attorney, Letitia
James, Attorney General of the State of New York, as and for their Complaint
against Defendants PepsiCo, Inc., Frito-Lay, Inc., and Frito-Lay North America,
Inc., (collectively, “PepsiCo”), allege upon information and belief as follows:
NATURE OF THE ACTION
1. Year after year, plastic packaging amasses on the shores of the Buffalo
River. Single-use plastic beverage bottles, bottle caps, and snack food wrappers, of
the type manufactured, distributed, and sold by PepsiCo, are collectively the most
abundant forms of plastic waste along the shores of the Buffalo River, and PepsiCo
is the single largest identifiable contributor to this plastic waste.
Plastic waste collected in April 2022

from the Erie Basin Marina in the City
of Buffalo, including Gatorade bottles
and Lay’s potato chip packaging
produced by PepsiCo.
2. Because plastic does not biodegrade in the environment, but rather
fragments into smaller and smaller pieces known as microplastic or nanoplastic,
This is a copy of a pleading filed electronically pursuant to1 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
PepsiCo’s plastic packaging pollutes the land and the river itself. PepsiCo’s plastic
packaging contaminates the river and public drinking water supplies, threatening
public health, harming freshwater species, and endangering the ecosystem. In all
its forms, this plastic pollution interferes with the public’s use and enjoyment of the
Buffalo River and its environs, and adversely affects the aesthetic value of the river
and its shoreline.
3. In a survey of plastic pollution in the Buffalo River and its environs
conducted by the Office of the Attorney General in 2022, PepsiCo’s plastic
packaging far exceeded any other source of identifiable plastic waste, and it was
three times more abundant than the next contributor (McDonald’s).
4. In 2022 alone, PepsiCo produced approximately 2,600,000 metric tons
(or roughly 5,732,000,000 pounds) of plastic packaging, equivalent to the weight of
over seven Empire State Buildings. PepsiCo’s bottled beverages represented
approximately 20% of the retail market for comparable beverages sold the United
States, and PepsiCo is also the second largest food company in the world.
5. PepsiCo has long known of the harms caused by its single-use plastic
packaging, acknowledging on its website that there is a “plastic pollution crisis” and
that its own packaging has “potential environmental impacts.”
6. PepsiCo also acknowledges its significant role in addressing the
problem of plastic pollution. As PepsiCo Chairman and CEO Ramon Laguarta has
stated, “[a]s one of the world’s leading food and beverage companies, we recognize
the significant role PepsiCo can play in helping to change the way society makes,
uses, and disposes of plastics.”
7. But, just as PepsiCo has long been aware that its packaging
contributes substantially to plastic pollution in the environment, it is also aware
that the public’s perceptions regarding packaging and its environmental impact—
specifically single-use plastic and other plastic packaging—could cause “damage to
[PepsiCo’s] reputation or brand image . . . .[and] could lead consumers to reduce or
publicly boycott the purchase or consumption of [PepsiCo] products,” as the
company has acknowledged in its annual reports filed with the Securities and
Exchange Commission.
8. PepsiCo has failed to abate the harm or warn the public that its plastic
packaging is a potential source of plastic pollution and presents a risk of harm to
human health and the environment. Instead, it has misled the public about its
efforts to combat plastic pollution, while increasing its production and sale of single-
use plastic packaging.
9. Year after year, PepsiCo touts ineffective solutions and lofty goals that
have repeatedly failed to materialize.
10. By its continued manufacturing, production, marketing, distribution,
and sale of vast quantities of single-use plastic packaging, PepsiCo has significantly
contributed to, and continues to contribute to, the existence of a public nuisance
that injures the community living in the City of Buffalo and surrounding areas.
PepsiCo’s plastic packaging also fails to warn the public or consumers of its
potential to contribute to plastic pollution in waterways and fails to warn the public
or consumers of the potential harms caused by its packaging. PepsiCo’s repeated
and persistent omissions and misleading statements relating to the actual and
threatened harms caused by its plastic packaging in the sale of its products in New
York also violate New York General Business Law § 349 and New York Executive
Law § 63(12).
11. In light of the failure of PepsiCo’s purported solutions to remedy the
harms caused by its plastic packaging, and PepsiCo’s failure to otherwise abate the
public nuisance to which it has substantially contributed, the State brings this
action seeking declaratory, injunctive and monetary relief.
PARTIES
Plaintiff
12. The Attorney General of the State of New York, on behalf of the
People of the State of New York, brings this suit to protect the health and
interests of citizens and residents, and the natural resources of the State. This
action is brought pursuant to the Attorney General’s common law and statutory
authority, including Article 22-A of the New York General Business Law and Article
63 of the New York Executive Law.
Defendants
13. Defendant PepsiCo, Inc. is incorporated in North Carolina. Its
principal executive office is located at 700 Anderson Hill Road, Purchase, New York
10577. PepsiCo, Inc. regularly transacts business in New York State, derives
substantial revenue from its business in the State, and owns and/or uses real
property within the State.
14. Defendant Frito-Lay, Inc. (“Frito-Lay”) was formed in 1961 and
merged with the Pepsi-Cola Company to create PepsiCo, Inc in 1965. It is currently
a wholly-owned subsidiary of PepsiCo, Inc. Frito-Lay is incorporated in Delaware,
and its headquarters are located in Plano, Texas. Frito-Lay regularly transacts
business in New York State, derives substantial revenue from its business in the
State, and owns and/or uses real property within the State.
15. Defendant Frito-Lay North America, Inc. (“Frito-Lay North
America”) is a wholly owned subsidiary of PepsiCo, Inc. and operates as the
convenient foods business unit of PepsiCo, Inc. It is incorporated in Delaware, and
its headquarters are located in Plano, Texas. Frito-Lay North America regularly
transacts business in New York State, derives substantial revenue from its business
in the State, and owns and/or uses real property within the State.
16. PepsiCo is engaged in the manufacture, production, marketing,
packaging, distribution and sale of beverages and food, the overwhelming majority
of which is packaged in single-use plastic. Through its own operations, the
operations of authorized bottlers, contract manufacturers and other third parties
under its control, PepsiCo serves customers throughout New York, including
residents of the City of Buffalo and surrounding areas.
17. PepsiCo produces at least 85 different beverage brands, including
Pepsi products, Gatorade, Mountain Dew, Mug Root Beer, Propel drinks, Aquafina
water, and Brisk and Pureleaf teas.
18. PepsiCo also produces at least 29 snack food brands, including, among
others, Lay’s potato chips, Doritos tortilla chips, Fritos corn chips, Cheetos cheese-
flavored snacks, Santitas tortilla chips, Sun Chips multigrain chips, and Tostitos
tortilla chips.
19. In 2022 alone, PepsiCo generated more than $86 billion in net revenue.
JURISDICTION AND VENUE
20. This Court has jurisdiction pursuant to New York Constitution VI
§ 7(a) and Judiciary Law § 140-b. No claim or substantial question of federal law is
alleged.
21. This Court has personal jurisdiction over PepsiCo pursuant to C.P.L.R.
§§ 301 and 302.
22. Venue in this county is proper pursuant to C.P.L.R. § 503(a) as
plaintiffs reside in the county and a substantial part of the events or omissions
giving rise to the claim occurred in the county.
LEGAL FRAMEWORK
Public Nuisance
23. Under New York common law, a public nuisance claim exists for
conduct that amounts to a substantial interference with the exercise of a common
right of the public, thereby offending public morals, interfering with use by the
public of a public place, or endangering or injuring the property, health, safety, or
comfort of a considerable number of persons.
New York General Business Law § 349
24. New York General Business Law § 349 prohibits deceptive acts or
practices in the conduct of any business, trade, or commerce or in the furnishing of
any service in this State. The law applies to “virtually all economic activity, and
[its] application has been correspondingly broad.” Plavin v. Group Health Inc., 35
N.Y.3d 1 (2020).
25. The Attorney General is authorized to bring an action to enjoin a
person or entity from engaging in deceptive acts or practices in the conduct of
business and to seek restitution of any moneys or property obtained directly or
indirectly by any such unlawful acts or practices.
26. Violations of New York General Business Law § 349 may also be
penalized by a civil penalty of up to $5,000 per violation.
New York Executive Law § 63(12)
27. New York Executive Law § 63(12) authorizes the Attorney General to
bring a proceeding for repeated or persistent illegality in the carrying on,
conducting, or transaction of business.
28. A violation of any state, federal, or local law or regulation constitutes
an illegality within the meaning of New York Executive Law § 63(12).
FACTS
A. The Buffalo River
29. The Buffalo River is an urban, navigable freshwater river in the Great
Lakes region, approximately 8 miles in length and located entirely within Erie
County, New York. Beginning where Cayuga Creek and Buffalo Creek join, the
river flows west through the City of Buffalo to its outflow into Lake Erie. The
river’s watershed is approximately 450 square miles, includes the Cayuga, Buffalo,
and Cazenovia Creek tributaries, and lies exclusively within the State of New York.
The watershed encompasses significant portions of the City of Buffalo and Erie
County, as well as portions of Wyoming County and Genesee County.
30. The Buffalo River was once considered one of the most polluted rivers
in the United States. Discharges from grain milling and manufacturing industries
that operated along the river in the late 1800s and at the turn of the century, along
with chemical and sewer discharges, had so polluted the river that it was devoid of
fish by the 1920s. Extensive dredging to deepen and widen the river for navigation
during this time also damaged the river’s ecosystem. As late as the 1960s, the river
was considered biologically dead.
The Buffalo River in April 1951.
31. In 1987, the United States and Canada International Joint
Commission designated the Buffalo River as a Great Lakes Area of Concern, and
the New York State Department of Environmental Conservation created a remedial
action plan in 1989 for the restoration and maintenance of the river. Various state
and federal agencies, private interests, and non-profit organizations joined the
efforts to restore the river.
32. The ensuing decades saw substantial investment in projects designed
to restore the river’s ecosystem. These projects included the removal of over one
million cubic yards of contaminated sediment from the river floor at a cost of $45
million, the creation of natural fish-sheltering structures, and the restoration of
aquatic vegetation to allow fish populations such as walleye, bass, bullhead, and
trout to return. Tree seedlings were planted along the river’s edge to reduce erosion
and provide shade on the river, helping to keep the river cool and maintain
adequate levels of dissolved oxygen for aquatic life. New environmental policies and
regulations were imposed. Efforts to control sewage discharges through the Buffalo
Sewer Authority’s Long Term Control Plan further improved the river.
33. The Buffalo River and its shoreline improved markedly as the result of
these and other efforts. Water quality is improving, native aquatic vegetation is
taking hold, fish populations are recovering, and the recreational use by the public
expanded greatly. The river and its shoreline are now widely used by visitors and
residents of Buffalo for a variety of recreational activities including kayaking,
fishing, recreation in shoreline parks, and boat tours.
34. Residents of Erie County, including those living in the City of Buffalo,
have overwhelmingly supported initiatives designed to protect the surrounding
environment and water quality. In Erie County, for instance, 62% of voters
supported the passage of the Green Amendment the New York State Constitution
establishing the right to clean water, clean air, and a healthful environment.
35. As efforts to remediate the Buffalo River from past contamination
continue, however, the harms caused by plastic pollutions threatens to derail that
progress.
B. PepsiCo’s Plastic Packaging in the Buffalo River and Along Its

Shoreline
i. PepsiCo’s Single-Use Plastic Packaging
36. PepsiCo relies upon the pervasive production of single-use plastic for
its packaging. Most of the beverages and snack food items manufactured, produced,
distributed, and sold by PepsiCo are packaged in single-use plastic, discarded
immediately after the beverage or snack is consumed.
37. PepsiCo uses a variety of different plastic polymers in its packaging,
including polyethylene terephthalate (“PET” or “PETE”), polypropylene (“PP”),
high-density polyethylene (“HDPE”), low-density polyethylene (“LDPE”), and
others.
38. PepsiCo has owned and operated its own bottling operations since
2009, accounting for 80% of its bottling volume. This allows it to directly control the
manufacturing, distribution, and sale of its beverage products.
39. PepsiCo’s plastic bottles are typically made of PET. To manufacture
its beverage bottles, PepsiCo’s bottling operations first obtain preformed PET
vessels from a supplier. These “pre-forms” are small, thick tubes of PET resin,
typically molded to include the bottle’s eventual screw top shape. After receipt of
10New York State court rules (22 NYCRR §202.5-b(d)(3)(i))

This is a copy of a pleading filed electronically pursuant to
the pre-forms, PepsiCo manufactures the bottle using a process known as stretch-
blow molding, first heating the pre-forms and then injecting them with air while the
pre-form is held in a mold to form the desired bottle shape. After the bottle is
manufactured, PepsiCo then fills, caps, and applies the label to the beverage bottle.
40. For the remaining 20% of its beverage bottle volume, PepsiCo utilizes
independent bottlers. Independent bottling operations are typically allocated
territories according to contracts with PepsiCo. Those contracts grant independent
bottlers rights to manufacture, distribute, and sell specified beverages within the
identified geographic territory. But PepsiCo retains control over the
manufacturing, production, distribution, and sale of its beverages.
41. The New York counties through which the Buffalo River and its
tributaries flow, i.e. Erie, Genesee, and Wyoming counties, are supplied by
PepsiCo’s own bottling operations, not those of an independent bottler.
42. While PepsiCo’s plastic beverage bottles are made of PET, plastic
beverage caps are typically made of HDPE or PP, and plastic wraps or sleeves used
as labels for the bottles contain LDPE or HDPE.
43. PepsiCo’s plastic snack and food wrappers are generally composed of
multiple layers of combined plastics and metals. For example, a potato chip bag is
can be composed of a combination of biaxially oriented polypropylene (“BOPP”),
LDPE, and aluminum.
44. PepsiCo similarly exercises control over the manufacturing,
production, distribution, and sale of its snack food products, dictating packaging

materials and utilizing its own trucks or contracted third parties under its control
to deliver its products.
45. For both its bottled beverages and its snack food products, PepsiCo
also relies heavily on Direct-Store-Delivery, wherein PepsiCo and its contracted
parties deliver beverages and snack foods directly to retail stores for merchandising.
ii. PepsiCo’s Contribution to Plastic Pollution in the Buffalo

River and Along Its Shoreline
46. As a result of PepsiCo’s and others’ persistent manufacturing,
production, distribution, and sale of beverages and snack foods in single-use plastic
packaging, single-use plastic items have become a dominant form of pollution in
urban watersheds such as the Buffalo River.
47. PepsiCo’s products are a particularly significant contributor to the
plastic pollution affecting the Buffalo River, and PepsiCo’s single-use plastic
packaging is found in abundance along the shores of the Buffalo River and its
tributaries.
48. In 2022, the Office of the Attorney General conducted a survey of all
types of waste collected at 13 sites along the Buffalo River and in its watershed. In
total, 2,621 pieces of waste containing identifiable brands were collected throughout
2022; nearly three quarters (73%) of those items were plastic.

49. PepsiCo’s plastic packaging far exceeded any other source of
identifiable plastic waste, and it was three times more abundant than the next
contributor (McDonald’s). Of 1,916 pieces of plastic waste containing an identifiable
brand, 328 (17.1%) were produced by PepsiCo.
Rank Producer 1 Total Percent

Items
1 PepsiCo 328 17.1%
2 McDonald’s Corporation 109 5.7%
3 The Hershey Company 80 4.2%
4 Restaurant Brands International 75 3.9%
(subsidiaries include Burger King, Tim
Hortons, Popeyes, and Firehouse Subs)
5 Mars, Inc. 73 3.8%
6 The Coca-Cola Company 60 3.1%
7 Sazerac Company, Inc. 59 3.1%
(alcoholic beverage company that produces
bourbons and whiskeys and owns various
other brands including Fireball, Southern
Comfort, Seagram’s V.O., Myers’s, and
Goldschläger, among others)
8 7-Eleven, Inc. 42 2.2%
9 BlueTriton Brands, Inc. 42 2.2%
(beverage company that produces bottled
water including Arrowhead Water, Deer
Park Spring Water, and Poland Spring,
among others)
10 Kellogg Company 41 2.1%
Top ten producers of plastic waste identifiable by brand, collected at 13 sites along
the shores of the Buffalo River and its tributaries.
50. The findings of the 2022 survey conducted by the Office of the Attorney
General are consistent with the observations recorded in other studies. For
instance, the non-governmental organization Buffalo Niagara Waterkeeper and
1Of the 1,916 pieces of branded plastic waste collected, 157 plastic tobacco wrappers
of varying brands were collected and counted on April 23, 2022, but the brands were
not recorded before disposal.

others have engaged in trash pick-ups throughout Erie County since 2008; every
year volunteers and volunteer organizations remove trash from local beaches,
parks, and waterways and record data on the types of trash being collected. Over
56,000 pieces of trash have been collected in the Buffalo River watershed and
recorded since 2008.
51. In these cleanups, plastic waste overwhelms all other types of waste
collected. From 2013 to 2022, approximately 78% of all items collected were plastic.
Single-use plastic packaging for food and beverages, including food wrappers,
plastic bottles, and bottle caps were found in significant amounts every year.
Historic data from 2008 to 2012 showed similar results.

52. Although cigarette butts were recorded as the most abundant type of
plastic pollution in the 2013 to 2022 cleanups, the combination of plastic beverage
bottles, plastic food wrappers and plastic bottle caps – including the types produced
by PepsiCo – heavily outweighs cigarette butts in terms of contribution of plastic
mass into the environment.
53. In another 2022 study, the non-governmental organization 5 Gyres
analyzed 14,237 pieces of waste collected at national parks. Of that total, 81% was
plastic, 8.1% was metal, 6.5% was paper, and 1.3% was glass. PepsiCo’s packaging
(including Gatorade, Pepsi, Aquafina, Mountain Dew, and LifeWTR beverage
bottles, as well as Cheetos, Doritos, Frito-Lay, Lay’s, Tostitos, Ruffles, and Sun
Chips snack food wrappers, among others) was the leading contributor to this
waste.
54. Similarly, in a separate study, the non-governmental organization
Break Free From Plastic aggregated 2,125,415 items of plastic waste from 2,373
separate collections across the United States from 2018 to 2022. Of the items for
which a brand was identifiable, 50,558 were produced by PepsiCo. The study
documented PepsiCo as either the number one (2020-2022) or number two (2018-
2020) producer of branded plastic waste collected across the United States.

iii. Fragmentation of PepsiCo’s Plastic Packaging into

Microplastic and Contamination of Water Bodies
55. Once PepsiCo’s single-use plastic packaging is discarded and enters
the environment, it fragments into smaller and smaller pieces of plastic, referred to
as microplastic or nanoplastic depending on the size. Microplastic refers to pieces of
plastic smaller than 5 millimeters in diameter. The term nanoplastics refers to the
smallest subset of microplastic pieces, measuring 1000 nanometers or less.
Microplastic collected from the Buffalo River.
56. Aging and fragmentation of large plastic pieces starts immediately
upon physical abrasion and mechanical action, such as the initial act of opening a
plastic bottle or plastic food packaging. Once in the environment, sunlight and
thermal radiation, temperature fluctuation and continued physical abrasion all
contribute to the further fragmentation of plastic into smaller and smaller pieces.
Within months of a piece of plastic entering the environment, significant aging,
reduction of particle size, and surface roughness can be observed.
57. Plastic waste is not only more prevalent in urban areas, but it is also
more mobile. Impervious surfaces (such as pavement and concrete), as well as
urban storm sewers, act to facilitate the movement of plastics into water bodies

during runoff-events from rain or snow melt. Urban rivers are thus significant
sources of plastic waste entering the Great Lakes, including Lake Erie.
58. Large quantities of microplastics have been found in the Buffalo River,
and an analysis of those samples has confirmed the presence of microplastic from
snack food wrappers and polymers of the type used in PepsiCo’s plastic beverage
bottles and bottle caps.
59. Researchers have estimated that almost 10,000 metric tons of plastic
waste is entering the Great Lakes annually, primarily originating from rivers
running through large population centers. Applying the same methodology,
approximately 230 metric tons of the plastic waste entering Lake Erie each year is
from the Buffalo River.
C. The Harms Caused by PepsiCo’s Plastic Packaging
60. The plastic pollution contaminating the Buffalo River and its environs,
to which PepsiCo is a substantial contributor, causes wide-ranging harms to the
public and New York State.
61. First, the contamination of freshwater ecosystems by plastic and
microplastics is a threat to human health. The City of Buffalo and other New York
communities source their drinking water from Lake Erie, and microplastics have
been detected in Lake Erie. Moreover, other communities source their drinking
water from the Niagara River, downstream of the Buffalo River. Microplastics have
been detected in the City of Buffalo’s drinking water supply as well as the water
supplies of other communities.

62. Microplastics have been found throughout the human body. They can
enter the human circulatory system through the small intestine and have been
detected in the liver and spleen, placenta, blood, and even breastmilk.
63. Microplastics have also been detected in popular game fish species that
are known to inhabit Lake Erie and the Buffalo River and are consumed in the
community, including fish species such as walleye and perch offered on local menus
in the region.
64. Once in the environment, these microplastics attract, and can act as
vectors for, pathogens and a variety of contaminants, including heavy metals and
other persistent organic pollutants. These environmental contaminants are
associated with a range of harms to human health.
65. Moreover, a wide range of commercial plastic packaging, including
PET and PP, leach chemical additives having detectable estrogenic activity,
substances that cause adverse health effects at low doses in fetal and juvenile
mammals. These health-related problems include early puberty in females, reduced
sperm counts, altered functions of reproductive organs, obesity, altered sex-specific
behaviors, and increased rates of some types of cancers. The effects from plastic
additives have been observed in mammals, and researchers expect the same effects
would be observed in humans.
66. Exposure to microplastic and nanoplastic itself can also cause
biochemical and structural damage in laboratory animals, including inflammation
in the intestine and dysfunction of the liver, excretory and reproductive systems in
mammals. Such exposure can also cause adverse toxicological effects on human

cells, including cell barrier damage and reduced cell viability, and it can negatively
affect human gut microbiota communities.
67. Infants and young children are particularly sensitive and thus at
higher risk of health effects from plastic related exposures. Environmental
exposures during early life development can permanently influence health and
vulnerability to disease later in life.
68. In addition to negative effects on human health, research surrounding
plastic and microplastic pollution shows negative impacts occurring over a wide
range of species living in freshwater and terrestrial habitats due to exposure from
various plastic polymers of different sizes and shapes.
69. Microplastics and nanoplastics contaminate every level of the food web
in the Great Lakes, and both plastic fragments and the chemicals they carry can
bioaccumulate in freshwater species. At least 206 freshwater species have been
found to ingest or become entangled in plastic, with many lethal and sublethal
adverse effects.
70. The range of negative impacts on freshwater species from plastic
pollution is as wide as the species impacted. Microplastic reduces root growth in
aquatic plants, birds die from entanglement, and fish species show injury and
inflammatory responses when microplastics are ingested. Microplastic exposure
can also cause neurotoxic effects in animals, such as oxidative stress and inhibition
of neurotransmitters important in brain functioning.

71. Birds that inhabit the Buffalo River and its environs, such as mallard
ducks, loons, and cormorants, are known to ingest plastic pollution, mistaking it for
food. As a consequence, they can suffer from weakness, irritation of the stomach
lining, digestive tract blockage, internal bleeding, abrasion, ulcers, failure to put on
fat stores necessary for migration and reproduction, absorption of toxins, and even
potential death through starvation.
Mallard ducks feeding in a mass of floating waste.
72. Various fish species inhabiting the Buffalo River are also known to
ingest microplastic, including yellow perch, northern pike, brown bullhead,
smallmouth bass, and largemouth bass. Like birds, fish have been shown to suffer
ill effects from plastic pollution such as reduced nutritional intake as a result of
microplastic ingestion and entanglement. These fish are also recreationally caught

on the Buffalo River or its tributaries and are commonly eaten by humans and other
animals.
A rainbow trout, a species that also inhabits the

Buffalo River, captured in Lake Ontario deformed
by a plastic bottle ring.
73. In addition to the threats to the health of humans and other
organisms, PepsiCo’s plastic packaging also interferes with the public’s enjoyment
and use of public spaces. It negatively impacts the recreational and aesthetic value
of the river and its environs, and it is costly to remove.
74. Plastic pollution, to which PepsiCo substantially contributes, is
damaging the very same public spaces that have been the subject of decades-long
efforts to restore habitats and increase recreational potential. For instance, in the
case of Seneca Bluffs Natural Habitat Park, a 15-acre park on the south shore of the
Buffalo River, restoration efforts have included repairing the shoreline to allow the
riverbank to gradually meet the river and to provide animals such as beavers and
muskrats with access to the vegetation, shrubs, and trees in the park, planting of
native species to replace invasive ones, and the placement of logs and root wads

along the shoreline to act as a refuge location for fish and other aquatic life, among
other things.
75. At Thomas Higgins Natural Habitat Park, located at the confluence of
the Buffalo River and the Cazenovia Creek, restoration projects have included
creation of a wetland and a pond to hold water following snow melt and spring
rains, as well as planting of trees, shrubs, and wildflowers to create a healthy
habitat for wildlife populations, including turtles and waterfowl.
76. At Red Jacket Natural Habitat Park, green infrastructure was
enhanced to help mitigate erosion and capture contaminants from municipal runoff,
and a living fence consisting of densely growing hedges was planted around the
perimeter of the park to provide additional natural habitat and prevent the
intrusion of invasive species. The restoration also included an improved walkway
for visitors and kayak launch access.
77. As with all other sites surveyed in 2022 by the Office of the Attorney
General along the Buffalo River, PepsiCo’s plastic packaging is found in abundance
at these three parks. Of the hundreds of pieces of plastic waste containing
identifiable brands collected at Seneca Bluffs Natural Habitat Park, Thomas
Higgins Natural Habitat Park, and Red Jacket Natural Habitat Park in 2022,
PepsiCo produced approximately 16%. According to a recent survey of residents,
73% reported encountering plastic waste and debris along the shoreline of the
Buffalo River.

Plastic pollution, including a

Fritos snack wrapper
produced by PepsiCo, on the
shoreline of the Buffalo River
at Red Jacket Natural Habitat
Park. Observed September 8,
2023.
78. To counter the negative effects of plastic pollution, and in the face of
PepsiCo’s failure to abate the harms caused by plastic pollution, the public has
undertaken costly measures to reduce the quantity of plastic pollution in and
around the Buffalo River. For instance, as a part of the redevelopment of Buffalo’s
Inner Harbor, the Buffalo Sewer Authority was awarded $8.6 million in funding
through the American Recovery and Reinvestment Act to support the construction
of the Hamburg Drain Floatables Control Facility, estimated to cost $18 million.
This facility is designed to capture floatable waste, a significant portion of which is
plastic pollution, from twenty sewer regulators within the Hamburg drain system
before it gets to Canalside, a newly created and popular tourist destination at the
mouth of the Buffalo River.

79. The accumulation of single-use plastic waste in the Buffalo River, to
which PepsiCo substantially contributes, is also a factor in the ongoing need for the
Hamburg drain system, constructed and operated at great public expense. Nearly
half of branded trash items observed during two site visits to the Hamburg Drain
Floatables Control Facility were plastic beverage bottles or plastic snack food
wrappers produced by PepsiCo.
Cheetos snack wrapper in the

hopper at the Hamburg Drain
Floatables Control Facility,
observed December 14, 2022.
Gatorade plastic bottle on

the conveyer belt at the
Hamburg Drain Floatables
Control Facility, observed
December 14, 2022.

D. PepsiCo’s Misleading Statements and Failure to Warn
80. PepsiCo has long been aware of the existing and threatened harms
caused by the accumulation of plastic waste in the environment and its own
contribution to the problem. Since the 1980s, researchers have known that plastic
is accumulating in rivers, landfills, and sewers and flowing into water bodies.
81. PepsiCo itself characterizes the problem as a “plastic pollution crisis,”
and the company has expressly acknowledged that its own plastic packaging may
end up as waste on land or in water bodies with “potential environmental impacts.”
As PepsiCo Chief Sustainability Officer Jim Andrew explained, the company’s
plastic packaging “is something we’re very aware of our responsibility around.”
82. PepsiCo also intends and knows that its customers will discard its
packaging after a single use. Over decades, PepsiCo has produced millions of metric
tons of single-use plastic beverage bottles, caps, and food wrappers. None of this
plastic packaging is reusable and little is recycled. Instead, the vast majority of the
plastic is discarded, with significant quantities discarded into the environment or
lost during waste collection, management, or final disposal.
83. PepsiCo is also aware of the acute limitations of recycling as a solution
to the harms caused by plastic pollution. First, PepsiCo’s snack food packaging is
not recyclable. Recycling thus cannot provide a solution for the multi-layered
plastic packaging used by PepsiCo for its Lay’s potato chips, Doritos, Cheetos,
Tostitos tortilla chips or other snack foods. Even as to PepsiCo’s beverage bottles
made from PET, the vast majority are not recycled. In 2020, only 26.6% of PET
bottles were recycled in the US, with the rest incinerated, sent to landfills, or

discarded directly or indirectly into the environment. There are also geographical
areas with limited or no access to recycling. As PepsiCo has acknowledged in a
press release publicizing its relationship with the Ellen MacArthur Foundation and
quoting the foundation, “[w]e know we cannot recycle our way out of this plastic
pollution crisis.”
84. Alternatives to single-use plastic packaging are available, but PepsiCo
has chosen not to deploy these alternatives to any significant degree in the New
York market. In December 2022, for example, the company announced refillable
and returnable glass and plastic programs in major international markets including
Mexico, Guatemala, Colombia, Chile, Germany, and the Philippines. PepsiCo’s own
brand of sparkling water, Bubly, introduced in 2019, is sold in cans and in soda
fountains rather than plastic bottles.
85. Despite its characterization of the problem as a “crisis,” and instead of
taking steps to adequately abate the public nuisance to which it contributes,
PepsiCo has: i) misled the public and consumers regarding the efficacy of plastic
recycling and its own efforts to combat plastic pollution, and ii) failed to include a
warning on its plastic packaging stating that the packaging is a potential source of
plastic pollution and presents a risk of harm to human health and the environment.
i. PepsiCo’s Misleading Statements Regarding the Efficacy

of Plastic Recycling and Its Efforts to Combat Plastic
Pollution
86. First, despite its awareness of the limitations of plastic recycling as a
solution, PepsiCo has misleadingly and repeatedly portrayed recycling as a solution

to its own contribution to plastic pollution, claiming recycling is a path for PepsiCo
to achieve its purported sustainability goals.
87. Using press releases and other public statements, PepsiCo deliberately
creates the misleading impression that some or all of the types of plastic resins used
in its plastic packaging are infinitely recyclable, i.e., that there is a circular
economy for plastic in which PepsiCo’s plastic packaging can be reprocessed over
and over again. PepsiCo, for instance, claims that its recycling strategy will “keep
the material in the circular economy.” It claims to “recognize the role we can play in
creating a circular economy for packaging,” asserting that “[a] circular economy for
packaging can help ensure that the valuable materials that are used in packaging
are recycled and reused, rather than becoming waste.”
88. But these and other references to a “circular economy for plastic” are
misleading. Not only are PepsiCo’s snack food wrappers not recyclable whatsoever,
even the recyclability of PepsiCo’s PET bottles is limited. Every time plastic is
recycled, the polymer chain grows shorter, and the quality of the material
decreases. Plastic can only be recycled a limited number of times before the quality
of the plastic material is so degraded it cannot be used again for the same purpose.
Contrary to the misleading impression given by PepsiCo’s statements, PepsiCo’s
PET bottles can generally only be recycled a limited number of times before the
plastic resin will no longer be of a sufficient quality to form a new bottle.
89. Second, PepsiCo’s statements give a misleading impression of the
company’s progress toward reducing its contribution to plastic pollution. In
particular, the company’s misleading use of targets related to its plastic packaging

deceives consumers and the public into believing PepsiCo is moving toward a
meaningful reduction in its production of single-use plastic, when in fact no such
progress is being made.
90. For instance, in 2019, PepsiCo announced a target to reduce the total
amount of virgin plastic used in its plastic beverage bottles by 35% by 2025, using
its 2018 quantity as a baseline. According to PepsiCo, this reduction would
“fundamentally change the way the world interacts with our packaging to deliver
our vision of a world where plastics need never become waste.” But this target
quickly proved unattainable for PepsiCo. Two years later, PepsiCo’s use of virgin
plastic in its beverage bottles increased by 5%.
91. Faced with this failure, PepsiCo simply changed the target without
fundamentally changing its practices. In 2021, PepsiCo stopped reporting its
progress toward the 2019 beverage bottle target and instead announced a new
target of reducing virgin plastic per serving in beverage bottles and convenient
foods packaging by 50% by 2030, to include a 20% reduction in the total amount of
virgin plastic used in its plastic packaging, now using 2020 as a baseline.
92. But in 2022, PepsiCo’s total use of virgin plastic in its plastic
packaging again increased, this time by 11%.
93. PepsiCo’s messaging regarding its use of virgin plastic gives a
misleading impression that the company is making meaningful progress toward
combatting the problem of plastic pollution, which the company recognizes affects
consumers’ decisions about whether to purchase their products. No such progress,

however, is being made. For the last four years, PepsiCo’s use of virgin plastic in its
packaging has increased year by year.
Quantity of Virgin Plastic Used

Year
by PepsiCo for its Packaging
2019 2,208,000 metric tons
2020 2,232,500 metric tons
2021 2,342,500 metric tons
2022 2,418,000 metric tons
94. In another example, in 2017, PepsiCo announced a specific target to
increase the recycled content in its plastic packaging to 25% by 2025. At that time,
PepsiCo reported that only 3% its plastic packaging was recycled content.
However, PepsiCo once again made little progress toward reaching that 25% target:
by 2020, PepsiCo had only increased the recycled content in its plastic packaging to
5%. PepsiCo then simply ceased reporting its progress toward the 2017 recycled
content target. Instead, in 2021, without acknowledging its failure to make
substantial progress toward its 2017 goal and without meaningfully changing its
practices, PepsiCo announced a new target to increase its recycled content in its
plastic packaging to 50% by 2030. In its 2021 and subsequent public statements,
the company also misleadingly asserted that the recycled content metric “was not
measured in prior years,” when in fact it was.
95. Thus, even applying PepsiCo’s own performance metrics, the company
is not making meaningful progress toward abating the plastic pollution to which it
contributes.

96. Indeed, when asked in May 2023 to identify “a sustainable packaging
win . . . that [PepsiCo has] had of late,” PepsiCo Vice President for Global Foods
Packaging Yolanda Malone only pointed to the company’s elimination of the plastic
film previously used as the outer packaging for its snack food variety packs, i.e.,
boxes containing several individually packaged, single serve portions from various
PepsiCo brands. This example was also one of only two examples offered in
PepsiCo’s 2022 annual report on performance metrics related to its use of virgin
plastic. But the CEO of PepsiCo Foods North America Steven Williams
acknowledged that this “win” only allowed PepsiCo to eliminate 12 million pounds
(equivalent to 5,443 metric tons) of plastic packaging from its products, a negligible
amount compared to the close to 6 billion pounds (2,600,000 metric tons) of plastic
PepsiCo used in its packaging in 2022.
ii. PepsiCo’s Failure to Warn Consumers and the Public

About the Risk of Harm from Its Plastic Packaging
97. PepsiCo’s plastic packaging also fails to warn consumers and the
public that the packaging is a potential source of plastic pollution and presents a
risk of harm to human health and the environment.
98. As PepsiCo acknowledges, consumers’ perception of the environmental
impact of PepsiCo’s plastic packaging affects consumer behavior. As PepsiCo has
stated in its annual reports filed with the Securities and Exchange Commission,
“concerns or perceptions regarding [its] packaging and its environmental impact
(such as single-use plastic and other plastic packaging)” could “lead consumers to
reduce or publicly boycott the purchase or consumption of [the company’s]

products.” The company similarly recognizes that “[m]aintaining a positive
reputation globally is critical to selling [its] products[,] . . . . [and the company’s]
reputation or brand image has in the past been, and could in the future be,
adversely impacted by . . . any failure, or perception of a failure, to achieve our
environmental, social and governance goals, including with respect to . . .
packaging, water use and our impact on the environment.”
99. In other words, the public’s perception of the environmental impact of
the company’s single-use plastic packaging directly affects consumer behavior. If
PepsiCo’s products carried a warning about the packaging’s potential contribution
to plastic pollution and the risk of harms to human health and the environment
that could result, the warning would affect consumer choices in a manner that
would reduce those harms. Among other things, consumers would reduce their
consumption of products sold in single-use packaging and instead opt for products
that utilize reusable containers, consumers would choose products that were
packaged in alternatives to plastic, or consumers would dispose of products in a
manner that causes less environmental harm.
100. Despite this, none of PepsiCo’s plastic packaging contains warnings
about its potential contribution to plastic pollution or the resulting harms to human
health or the environment.
FIRST CAUSE OF ACTION

Public Nuisance
101. Plaintiff realleges and incorporates by reference each and every
allegation in the paragraphs above as if the same were fully set forth herein.

102. On November 2021, New York citizens voted overwhelmingly in favor
of the Green Amendment, adding a new section 19 to Article I of the New York
State Constitution. The Green Amendment provides that: “Each person shall have a
right to clean air and water, and to a healthful environment.”
103. PepsiCo’s acts and omissions, and its widespread plastic pollution in
the Buffalo River and along its shores, have created or contributed, and continue to
create and contribute, to a substantial interference with the exercise of a common
right of the people living in the City of Buffalo and its surrounding areas,
interfering with the use by the public of public spaces, and/or endangering or
injuring the property, health, safety or comfort of a considerable number of persons.
104. PepsiCo knew, or should have foreseen, that its actions and omissions
would result in this offense, interference and/or damage to the public in the exercise
of common rights.
105. The offense, interference, and/or damage to the public in the exercise of
common rights caused by PepsiCo’s actions and omissions remain unabated.
SECOND CAUSE OF ACTION

Strict Products Liability: Failure to Warn
107. At all relevant times, the single-use plastic packaging produced, used,
or specified by PepsiCo for packaging its beverages and snack food products created
a substantial risk of harm to the People of the State of New York and their public

trust resources, including the Buffalo River, its bed and banks, and public parks
along the river.
108. PepsiCo’s consumers and the public are not, and were not at all
relevant times, aware of the nature or extent of the harms caused by PepsiCo’s
single-use plastic packaging.
109. PepsiCo failed, and continues to fail, to adequately warn its consumers
and the public of the known and foreseeable risks that follow from the intended use
and foreseeable misuse of its single-use plastic packaging.
110. PepsiCo knew or should have known that the single-use plastic
packaging containing its beverage and snack food products, whether used as
intended or misused in a foreseeable manner, would cause harm to the People of the
State of New York and their public trust resources, including the Buffalo River, its
bed and banks, and public parks along the river.
111. PepsiCo’s failure to warn has injured the People of the State of New
York and their public trust resources, including the Buffalo River, its bed and
banks, and public parks along the river.
THIRD CAUSE OF ACTION

Violation of New York General Business Law § 349
113. PepsiCo engaged in deceptive practices in the conduct of business,
trade, and/or commerce in New York, in violation of § 349 in the course of
manufacturing, selling, distributing, promoting, and/or marketing beverages and

snack foods in single-use plastic packaging, including by omission of a warning
regarding the known and foreseeable risks that follow from the intended use and
foreseeable misuse of its single-use plastic packaging.
114. By letter dated November 7, 2023, the Attorney General timely
provided PepsiCo with a pre-litigation notice pursuant to GBL § 349(c).
115. PepsiCo has damaged Plaintiff and numerous other individuals and
entities resident in New York through its deceptive practices in violation of General
Business Law § 349.
FOURTH CAUSE OF ACTION

Repeated and Persistent Illegality in Violation of New York Executive Law
§ 63(12)
117. PepsiCo engaged in repeated and persistent illegality in violation of
Executive Law § 63(12) through its violations of New York General Business Law
§ 349.
118. PepsiCo damaged the State of New York and its residents, and
obtained ill-gotten profits, through its repeated and persistent illegality in violation
of Executive Law § 63(12).
WHEREFORE, Plaintiff the People of the State of New York respectfully
requests that a judgment and order be entered that:
1. Declares that the accumulation of plastic pollution in the Buffalo River
and along its shorelines as described herein is a public nuisance;

2. Declares that PepsiCo has contributed to, and continues to contribute
to, the creation of the public nuisance described herein;
3. Directs PepsiCo to take reasonable best efforts to abate the public
nuisance described herein, by: i) undertaking studies to identify the extent of the
plastic pollution described herein and identify appropriate actions to remediate the
contamination, and undertaking the implementation of such effective remedial
actions; or ii) endowing an abatement fund with sufficient capital to eliminate the
public nuisance to which it has contributed and continues to contribute;
4. Enjoins PepsiCo to take reasonable best efforts to prevent further
contribution to the plastic pollution accumulating in the Buffalo River and along its
shorelines, including evaluating the efficacy of measures such as use of alternatives
to single-use plastic in the Buffalo region; identification and implementation of
methods to reduce the use of PepsiCo’s single-use plastic packaging in the Buffalo
region; and identification and implementation of measures to reduce the quantity of
PepsiCo’s plastic packaging entering the waterway;
5. Declares that PepsiCo has failed to adequately warn consumers that
its single-use plastic packaging could contribute to the contamination of waterways
and could lead to the presence of microplastic in drinking water, cause harms to the
health of humans and other organisms, and other harms;
6. Enjoins PepsiCo to place an adequate warning on its single-use plastic
beverage bottles and snack food wrappers sold or distributed in the Buffalo region
that warns consumers that the packaging is a potential source of plastic pollution
and presents a risk of harm to human health and the environment.

7. Enjoins PepsiCo from causing the sale or distribution of any product in
the Buffalo region in single-use plastic packaging that does not contain an adequate
warning;
8. Awards compensatory damages for the harm done to the Buffalo River
and its shoreline, and the citizens and inhabitants of the City of Buffalo, including
but not limited to damages for injury to natural resources, in an amount to be
determined at trial;
9. Declares that PepsiCo has violated General Business Law § 349;
10. Enjoins PepsiCo from engaging in any further deceptive acts,
omissions, or practices in violation of General Business Law § 349;
11. Awards Plaintiff, pursuant to General Business Law § 350-d,
restitution or civil penalties from PepsiCo in the amount of $5,000 for each separate
instance in which it employed a deceptive or unlawful act or practice in violation of
General Business Law § 349;
12. Orders disgorgement of all revenues, profits, and gains wrongfully
derived by PepsiCo on account of its repeated and persistent unlawful acts or
practices in violation of Executive Law § 63(12) and General Business Law § 349(a);
and
13. Grants such other relief as the Court may deem just.

Dated: November 15, 2023 FOR THE PEOPLE OF THE STATE

New York, New York OF NEW YORK
LETITIA JAMES
Attorney General
By: _________________________
Jennifer C. Simon
Assistant Attorney General
Environmental Protection Bureau
New York State Office of the Attorney General
28 Liberty Street, 19th Floor
New York, New York 10005
Jennifer.Simon@ag.ny.gov


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CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

SUPREME COURT OF THE STATE OF NEW YORK

PEOPLE OF THE STATE OF NEW YORK,

PEPSICO, INC.; FRITO-LAY, INC.; FRITO-

NATURE OF THE ACTION ......................................................................................... 1

JURISDICTION AND VENUE ..................................................................................... 6

LEGAL FRAMEWORK ................................................................................................. 6

A. The Buffalo River ................................................................................................. 7

C. The Harms Caused by PepsiCo’s Plastic Packaging ........................................ 17

D. PepsiCo’s Misleading Statements and Failure to Warn .................................. 25

FIRST CAUSE OF ACTION

SECOND CAUSE OF ACTION

THIRD CAUSE OF ACTION

FOURTH CAUSE OF ACTION

Inc., (collectively, “PepsiCo”), allege upon information and belief as follows:

NATURE OF THE ACTION

is the single largest identifiable contributor to this plastic waste.

Plastic waste collected in April 2022

2. Because plastic does not biodegrade in the environment, but rather

fragments into smaller and smaller pieces known as microplastic or nanoplastic,

and its shoreline.

3. In a survey of plastic pollution in the Buffalo River and its environs

conducted by the Office of the Attorney General in 2022, PepsiCo’s plastic

three times more abundant than the next contributor (McDonald’s).

4. In 2022 alone, PepsiCo produced approximately 2,600,000 metric tons

(or roughly 5,732,000,000 pounds) of plastic packaging, equivalent to the weight of

over seven Empire State Buildings. PepsiCo’s bottled beverages represented

that its own packaging has “potential environmental impacts.”

6. PepsiCo also acknowledges its significant role in addressing the

uses, and disposes of plastics.”

contributes substantially to plastic pollution in the environment, it is also aware

specifically single-use plastic and other plastic packaging—could cause “damage to

[PepsiCo’s] reputation or brand image . . . .[and] could lead consumers to reduce or

publicly boycott the purchase or consumption of [PepsiCo] products,” as the

packaging is a potential source of plastic pollution and presents a risk of harm to

use plastic packaging.

have repeatedly failed to materialize.

10. By its continued manufacturing, production, marketing, distribution,

or consumers of the potential harms caused by its packaging. PepsiCo’s repeated

11. In light of the failure of PepsiCo’s purported solutions to remedy the

action seeking declaratory, injunctive and monetary relief.

63 of the New York Executive Law.

13. Defendant PepsiCo, Inc. is incorporated in North Carolina. Its

property within the State.

14. Defendant Frito-Lay, Inc. (“Frito-Lay”) was formed in 1961 and

a wholly-owned subsidiary of PepsiCo, Inc. Frito-Lay is incorporated in Delaware,

15. Defendant Frito-Lay North America, Inc. (“Frito-Lay North

America”) is a wholly owned subsidiary of PepsiCo, Inc. and operates as the

convenient foods business unit of PepsiCo, Inc. It is incorporated in Delaware, and

16. PepsiCo is engaged in the manufacture, production, marketing,

of which is packaged in single-use plastic. Through its own operations, the

operations of authorized bottlers, contract manufacturers and other third parties

residents of the City of Buffalo and surrounding areas.

17. PepsiCo produces at least 85 different beverage brands, including

water, and Brisk and Pureleaf teas.

JURISDICTION AND VENUE

20. This Court has jurisdiction pursuant to New York Constitution VI