Consumer Products: Microplastics Are Ubiquitous. So, Increasingly, Are the Class Action Suits They’re Spawning

In August 2024 judge’s decision to dismiss a major class action claim against bottled water makers will likely do little to stem the flow of microplastics litigation in the year ahead, says Meshach Rhoades, managing partner of Crowell & Moring’s Denver office.

Plaintiffs in the case had claimed that the company behind Ice Mountain bottled water violated the Illinois Consumer Fraud and Deceptive Business Practices Act when it used the wording “100% Natural” on its labeling, even though the water was actually found to contain microplastics—particles of less than 5 mm that can be shed by plastic bottle material.

But a federal judge roundly—and somewhat humorously—rejected the claim, on the grounds it was preempted by the Federal Food, Drug, and Cosmetic Act, which gives the Food and Drug Administration exclusive authority to define certain terms, including “spring water.” Plaintiffs also failed to meet the “reasonable consumer” standard under the law, he said.

“No reasonable consumer would think that a bottle of water wasn’t a bottle of water because it contained infinitesimally small amounts of microplastics,” wrote Judge Steven Seeger of the Northern District of Illinois. “The claim doesn’t hold water.”

However, a raft of similar bottled water class actions remains in other, more plaintiff-friendly jurisdictions, such as New York and California, says Rhoades. In addition, plaintiffs’ lawyers have begun targeting other products, including baby bottles.

Several false advertising class actions have been filed against baby bottle makers by plaintiffs who found microplastics leached into infant formula that had been warmed in bottles labeled free of bisphenol A, also known as BPA.

Spreading Beyond Water

While the FDA banned the use of BPA—a chemical used in the making of some plastics—in 2012, plaintiffs claim defendants created a false sense of security for consumers with their “BPA Free” label wording and caused them to assume the bottles were free of all types of microplastics.

Rhoades says she expects plaintiffs’ attorneys to take aim at makers of others beverages besides water that are bottled in plastic. “I think we’ll see it spread to just about everything,” she says. “Supplements with certain types of coatings, processed, and even non-processed foods.”

Still, Rhoades does not recommend that manufacturers rush to make radical changes to their labeling, such as adding a “may contain microplastics” warning—as has been suggested by plaintiffs’ attorneys.