By James Robert Maxwell and Whitney R. Miner of Rogers Joseph O’Donnell
Rising global concerns about the potential effects of microplastics on human health have driven an increasing awareness about sources of human exposure. The appointment of Robert F. Kennedy, Jr. as secretary of the Dept. of Health & Human Services (HHS) may add to this scrutiny of microplastics, given his assertions that plastic is a “crisis for human health and the environment.”
This backdrop has fueled a growing wave of class action litigation against food and beverage manufacturers, distributors, and suppliers.
“Microplastics” are defined by the U.S. Environmental Protection Agency as plastic particles ranging in size from 1 nanometer to 5 millimeters. California was the first state to formally define microplastics and borrows from the EPA’s definition. While other states have not formally adopted a comprehensive regulatory definition, several are at least addressing or acknowledging microplastics in some way.
To date, the U.S. has not enacted any laws banning microplastics in food or beverage products. This is because there is no conclusive scientific evidence that justifies such action. Indeed, the FDA issued guidance on this in 2024, noting that “the presence of environmentally derived microplastics and nanoplastics in food alone does not indicate a risk and does not violate FDA regulations unless it creates a health concern.”
The FDA also has recognized that “because there are no standardized methods for how to detect, quantify or characterize microplastics and nanoplastics, many of the scientific studies asserting concerns about potential harm have used methods of questionable and/or limited accuracy rendering them unreliable” and that “[t]here is not sufficient scientific evidence to show that microplastics and nanoplastics from plastic food packaging migrate into foods and beverages.”
Recent litigation trends have centered around class actions against food & beverage manufacturers, with consumers alleging failures to warn them of the alleged harmful effects of microplastics in products. Claims also include false or misleading labeling of such products as “natural” or “BPA free” when they allegedly contain microplastics. Also false labeling of products as “100% recyclable” when they allegedly can never be fully recycled. Given the uncertainty of scientific evidence, district courts have been inconsistent in their treatment of such claims. Examples:
- A court dismissed consumer claims against a distributor and seller of Fiji bottled water advertised as “Natural Artesian Water” when the plastic from the bottles allegedly leached into the water and exposed consumers to harmful health effects because the consumers cited various scientific studies about microplastics, but none about the Fiji bottled water at issue. Daly v. Wonderful Co., LLC, No. 24 C 1267, 2025 WL 672913 (N.D. Ill. Mar. 3, 2025).
- A court found that consumers plausibly alleged claims against manufacturers for their alleged misleading advertising of infant bottles and cups being labeled as “BPA free” while not disclosing the presence of microplastics because the consumers cited a relevant study documenting that feeding bottles made from polypropylene released microplastics in high volumes. Importantly, this case is still ongoing, in the early stages, and it remains that the consumers have merely alleged plausible theories. See Bruno v. BlueTriton Brands Inc., No. CV 24-1563-MWF (JPRX), 2024 WL 3993861 (C.D. Cal. Aug. 8, 2024)
- A court found that the FDA was better suited to address the questions posed in a case brought by consumers against manufacturers of Arrowhead-brand bottled water products as “100% Mountain Spring Water” that allegedly contained microplastics because the claims involved questions regarding the appropriate level of microplastics in bottled water and its impact on human health. See Daly v. Wonderful Co., LLC, No. 24 C 1267, 2025 WL 672913 (N.D. Ill. Mar. 3, 2025).
So, what does this mean for food and beverage manufacturers and how can they reduce their liability exposure in the midst of such uncertainty?
+ Labeling of consumer products. Stay apprised of evolving laws regarding the labeling of products potentially containing microplastics to ensure compliance.
+ Collaboration with suppliers and investment in R&D. Consider collaborations with partners to identify alternatives to plastic materials or investing in research and development to create more sustainable and eco-friendly products.
+ Contract management. Incorporate liability clauses in contracts with suppliers of raw materials and products to hold them accountable for violations of evolving microplastics laws and to indemnify for any claims arising from the use of their materials.
+ Insurance coverage. Review insurance policies to ensure adequate coverage against regulatory fines or lawsuits related to non-compliance with evolving microplastics laws.
+ Consider conducting regular audits and testing where possible. Consider using a third party to audit supplier facilities to ensure they are complying with sustainability and environmental regulations. As to testing of microplastics, it is best to stay apprised of industry-accepted and utilized methods that test for microplastics as they evolve.
James Robert Maxwell ([email protected]) is a shareholder in the Retail Industry Trade Regulation, Environmental Law, Cybersecurity and Privacy, and Complex Commercial Litigation practice groups at Rogers Joseph O’Donnell (www.rjo.com).
Whitney Miner ([email protected]) is a senior associate in the Retail Industry Trade Regulation, Environmental Law, Complex Commercial Litigation, and Cybersecurity and Privacy groups at Rogers Joseph O’Donnell (www.rjo.com).
