Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 1 of 49
`
`
`
`
`
`LEXINGTON LAW GROUP
`Howard Hirsch, State Bar No. 213209
`Ryan Berghoff, State Bar No. 308812
`Meredyth Merrow, State Bar No. 328337
`503 Divisadero Street
`San Francisco, CA 94117
`Telephone: (415) 913-7800
`Facsimile: (415) 759-4112
`hhirsch@lexlawgroup.com
`rberghoff@lexlawgroup.com
`mmerrow@lexlawgroup.com
`
`LAW OFFICE OF GIDEON KRACOV
`
`Gideon Kracov, State Bar No. 179815
`801 S. Grand Ave., 11th Floor
`Los Angeles, CA 90017
`Telephone: (213) 629-2071
`Facsimile: (213) 623-7755
`gk@gideonlaw.net
`
`Attorneys for Plaintiff
`GREENPEACE, INC.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`
`
`v.
`
`Plaintiff,
`
`GREENPEACE, INC.,
`
`
`
`
`
`WALMART INC,
`
`
`
`
`
`
`
`
`
`Defendant.
`
` Case No. 3:21-CV-00754-MMC
`
`THIRD AMENDED COMPLAINT
`
`
`
`
`
`
`
`
`
`
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 2 of 49
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Plaintiff Greenpeace, Inc. (“Plaintiff” or “Greenpeace”), based on information, belief, and
`
`investigation of its counsel, except for information based on knowledge, hereby alleges:
`
`INTRODUCTION
`
`1.
`
`The problems associated with plastic pollution are increasing on a local, national,
`
`and global scale. This affects the amount of plastic in the ocean, in freshwater lakes and streams,
`
`on land, and in landfills. Nearly 90% of plastic waste is not recycled, with billions of tons of
`
`plastic becoming trash and litter.1 According to a recent study, at least 1.2 to 2.5 million tons of
`
`plastic trash from the United States were dropped on lands, rivers, lakes and oceans as litter, were
`
`illegally dumped, or were shipped abroad and then not properly disposed of.2 To address
`
`increasing pressure from governmental entities, shareholders, consumers, environmental groups
`
`and other stakeholders regarding plastic pollution, manufacturers and distributors of plastic
`
`products or packaging are labeling their products as recyclable and environmentally beneficial,
`
`without maintaining any information substantiating the validity of such representations. Seeking
`
`to portray itself as environmentally minded and sustainability focused, defendant Walmart Inc.
`
`(“Defendant” or “Walmart”) manufactures or distributes a variety of single-use plastic products
`
`and packaging that are advertised or labeled as recyclable, without maintaining records that
`
`substantiate whether such products and packaging are actually recyclable.
`
`2.
`
`This Complaint seeks to remedy Defendant’s unlawful and unfair business
`
`practices with respect to its failure to substantiate its recycling representations on plastic products
`
`or plastic packaging that are: (A) sold under Defendant’s own private label brands;3 (B) labeled as
`
`
`1 Tom Udall and Alan Lowenthal, Op-Ed: More than 90% of U.S. plastic waste is never recycled.
`Here’s how we can change that, L.A. TIMES (Feb. 21, 2020, 3:01 AM)
`https://www.latimes.com/opinion/story/2020-02-21/plastic-waste-never-recycled-u-s (last
`accessed Feb. 17, 2022).
`2 Associated Press, Study: 1 to 2 million tons a year of U.S. plastic trash goes astray, L.A. TIMES
`(Oct. 30, 2020, 11:03 AM) https://www.latimes.com/world-nation/story/2020-10-30/study-1-to-2-
`million-tons-of-us-plastic-trash-goes-astray (last accessed Feb. 17, 2022).
`3 Examples of Defendant’s private label brands include, but are not limited to: Great Value,
`Allswell, Atheletic Works, Bonobos, Equate, EV1, Everstart, George, Holiday Time, Mainstays,
`Marketside, No Boundaries, Onn, Ozark Trail, Parent’s Choice, Scoop, SwissTech, Time and
`Tru, and Wonder Nation.
`
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-1-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 3 of 49
`
`“recyclable”; and (C) either made from plastic #3-7, unidentified plastic, or packaged in a plastic
`
`shrink sleeve (the “Products”).4 The Products are manufactured or distributed by Defendant and
`
`
`advertised or labeled as recyclable. However, the Products are not in fact recyclable because
`
`people do not have access to recycling programs that accept the Products, the Products cannot be
`
`separated or recovered from the general waste stream and sorted into the correct materials bale by
`
`material recovery facilities (“MRFs”), and there are no end markets to reuse the Products or to
`
`convert the Products into a material that can be reused or used in manufacturing or assembling
`
`
`another item. Despite Defendant’s extensive advertising and labeling of the Products as
`
`recyclable, most of the Products typically end up in landfills, incinerators, communities, or the
`
`natural environment.
`
`3.
`
`Under California’s Environmental Marketing Claims Act (the “EMCA”), anyone
`
`who manufactures or distributes a consumer good and represents in advertising or on the label
`
`that it is not harmful to, or is beneficial to, the natural environment, through the use of such terms
`
`as “environmentally safe,” “ecologically friendly,” or other like terms, must maintain written
`
`records supporting the validity of any such representation. Business & Professions Code §
`
`17580(a). The term “recyclable” is a term that represents that a product or packaging is not
`
`harmful to, or is beneficial to, the natural environment, and is therefore covered under Business &
`
`Professions Code § 17580(a). In fact, the EMCA specifically requires companies to maintain
`
`information and documentation as to whether such products or packaging conform with the
`
`
`4Non-exclusive examples of the Products include, but are not limited to: Great Value Organic
`Cinnamon Applesauce Cups, 24 oz, 6 Count, Walmart #556055661, UPC No. 0-7874213534-2,
`Product No. 136051; Great Value Diced Mangos In 100% Juice, 4 oz, 4 Count, Walmart
`#562987172, UPC No. 0-7874215803-7, Product No. 142059; Great Value Organic Diced
`Peaches & Pears, 16 oz., 4 Count, Walmart #562987178, UPC No. 0-7874223615-5, Product No.
`142059; Great Value Premium Forks, 48 Count, Walmart #438491, UPC No. 0-7874211675-4,
`Product No. 042499; Great Value Premium Clear Cutlery Knives, 48 Count, Walmart #438505,
`UPC No. 0-7874211670-9, Product No. 042499; Great Value Premium Assorted Silver Cutlery,
`36 count, Walmart #565175504; Great Value Snack Cups, 9 oz, 80 Count, Walmart #443461,
`UPC No. 0-681131925532, Manufacturer No. 6386717; Great Value Everyday Party Cups, 18 oz,
`20 Count, Walmart #443482, UPC No. 0-78742049090, Manufacturer No. 6386484; Great Value
`Extra Virgin Olive Oil Cooking Spray, 7 oz., 3 Pack, UPC No. 0-7874206043-9, Product No.
`928333; Great Value Ultimate Fresh Scent Booster, Blooming Lavender, 14.8 oz, Walmart
`#575777817, UPC No. 0-7874233153-9, Product No. 03604; and Great Value Plastic Party Cups,
`18 oz, 120 Count, Walmart #557007144, UPC No. 0-7874218708-2, Product No. 437462.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-2-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 4 of 49
`
`uniform standards contained in the Federal Trade Commission Guidelines for Environmental
`
`Marketing Claims (the “Green Guides”) for use of the terms “recycled” or “recyclable.” Id., §
`
`
`17580(a)(5). In addition to documents regarding whether the consumer good conforms with the
`
`Green Guides, the EMCA also requires that companies maintain the following records in written
`
`form supporting the validity of their recyclable representations: (1) the reasons why a company
`
`believes the representation to be true; (2) any significant adverse environmental impacts directly
`
`associated with the production, distribution, use, and disposal of the consumer good; (3) any
`
`
`measures that are taken by the company to reduce the environmental impacts directly associated
`
`with the production, distribution, and disposal of the consumer good; and (4) violations of any
`
`federal, state, or local permits directly associated with the production or distribution of the
`
`consumer good. Id., § 17580(a)(1)-(4). The California Legislature declared its intent that the
`
`information and documentation supporting the validity of any environmental marketing claims
`
`shall be fully disclosed to the public, and information and documentation maintained pursuant to
`
`Business & Professions Code § 17580 must be furnished to any member of the public upon
`
`request. Id., § 17580(b), (d).
`
`4.
`
`The Green Guides also require marketers to ensure that their claims are supported
`
`by a reasonable basis prior to making the claim. 16 C.F.R. § 260.2. A reasonable basis is defined
`
`as competent and reliable scientific evidence, such as “tests, analyses, research, or studies that
`
`have been conducted and evaluated in an objective manner by qualified persons and are generally
`
`accepted in the profession to yield accurate and reliable results.” Id. “Such evidence should be
`
`sufficient in quality and quantity based on standards generally accepted in the relevant scientific
`
`fields, when considered in light of the entire body of relevant and reliable scientific evidence, to
`
`substantiate that each of the marketing claims is true.” Id.
`
`5.
`
`Greenpeace has requested on numerous occasions that Defendant substantiate that
`
`the Products are recyclable in California or elsewhere in the United States. However, Defendant
`
`has not provided any documentation in written form substantiating the recycling representations
`
`on the labels of the Products. Nor has Defendant provided any competent and reliable scientific
`
`evidence, such as tests, analyses, research or studies that have been conducted and evaluated in an
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-3-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 5 of 49
`
`objective matter by qualified persons, to substantiate that the Products are recyclable. Defendant
`
`thus violated and continues to violate California’s Unfair Competition Law (“UCL”), Business
`
`
`and Profession Code § 17200, et seq., based on unlawful and unfair acts and practices because
`
`Defendant sells Products advertised or labeled as recyclable but has not and cannot substantiate
`
`that the Products are recyclable pursuant to the EMCA and the Green Guides.
`
`6.
`
`Plaintiff has no adequate remedy at law for the injuries currently being suffered as
`
`an award of monetary damages would not prohibit Defendant’s unsubstantiated recycling
`
`
`representations. Moreover, monetary damages would not remedy Defendant’s unlawful refusal to
`
`provide information that is mandated by statute to be disclosed to Greenpeace upon request. If an
`
`injunction is not granted, Plaintiff will suffer irreparable injury because it will continue to spend
`
`money, staff time and other organizational resources to combat Defendant’s unsubstantiated
`
`representations that the Products are recyclable in California and to inform the public that the
`
`Products are not recyclable in California. In addition, plastic pollution caused by Defendant’s
`
`sale of the Products in California and the resulting harms to California waters, coasts,
`
`communities, and marine life will continue to negatively impact Greenpeace’s efforts to protect
`
`these critical resources. California residents may also unknowingly contaminate the recycling
`
`stream by placing the Products in their recycling bins, preventing legitimately recyclable products
`
`from being recycled. Denial of access to statutorily required information is harming Greenpeace
`
`because it must continue to divert resources to investigate and communicate with Defendant and
`
`the public away from its advocacy efforts to promote legitimate recycling, to protect the integrity
`
`of recycling infrastructure, to foster sustainable alternatives to single-use plastic, to limit the
`
`impact of plastic pollution on the environment, and to educate the public regarding the types of
`
`plastic that may actually be recycled. Thus, Plaintiff seeks an order enjoining Defendant’s
`
`unlawful and unfair acts and practices in California, which serves the public interest by protecting
`
`the environment and the integrity of the recycling stream and by preventing Defendant from
`
`gaining an unfair advantage over companies that can substantiate that the products they sell are
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`recyclable.
`
`28
`
`
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-4-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 6 of 49
`
`LEGAL BACKGROUND
`
`7.
`
`In light of the significant amount of plastic that is advertised and labeled as
`
`
`recyclable but instead ends up in landfills, incinerators, communities, and the natural
`
`environment, the Legislature of the State of California has declared that “it is the public policy of
`
`the state that environmental marketing claims, whether explicit or implied, should be
`
`substantiated by competent and reliable evidence to prevent deceiving or misleading consumers
`
`about the environmental impact of plastic products.” Cal. Pub. Res. Code § 42355.5. The policy
`
`
`is based on the Legislature’s finding that “littered plastic products have caused and continue to
`
`cause significant environmental harm and have burdened local governments with significant
`
`environmental cleanup costs.” Id., § 42355. On October 5, 2021, California’s Governor signed
`
`Senate Bill 343 (“SB 343”), which amended Cal. Pub. Res. Code § 42355.5 to state that “the
`
`Legislature further finds and declares that it is the public policy of the state that claims related to
`
`the recyclability of a product or packaging be truthful in practice and accurate. Consumers
`
`deserve accurate and useful information related to how to properly handle the end of life of a
`
`product or packaging.” Id., § 42355.5(b).
`
`8.
`
`Similar to the public policy declared in the California Public Resources Code, the
`
`EMCA and the Green Guides require companies to substantiate environmental marketing claims.
`
`Under the EMCA, “Any person who represents in advertising or on the label or container of a
`
`consumer good that the consumer good that it manufactures or distributes is not harmful to, or is
`
`beneficial to, the natural environment, through use of such terms as ‘environmental choice,’
`
`‘ecologically friendly,’ ‘earth friendly,’ ‘environmentally friendly,’ ‘ecologically sound,’
`
`‘environmentally sound,’ ‘environmentally safe,’ ‘ecologically safe,’ ‘environmentally lite,’
`
`‘green product,’ or any other like term, shall maintain in written form in its records…information
`
`and documentation supporting the validity of the representation.” Business & Professions Code §
`
`17580(a). The term “recyclable” is a term that represents that a product or packaging is not
`
`harmful to, or is beneficial to, the natural environment, and is therefore covered under Business &
`
`Professions Code § 17580(a). In fact, the EMCA specifically requires companies to maintain
`
`information and documentation as to whether such products or packaging conform with the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-5-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 7 of 49
`
`uniform standards contained in the Green Guides for use of the terms “recycled” or “recyclable.”
`
`Id., § 17580(a)(5). In addition to documents regarding whether the consumer good conforms with
`
`
`the Green Guides, the EMCA requires that companies maintain the following records in written
`
`form supporting the validity of their recyclable representations: (1) the reasons why a company
`
`believes the representation to be true; (2) any significant adverse environmental impacts directly
`
`associated with the production, distribution, use, and disposal of the consumer good; (3) any
`
`measures that are taken by the company to reduce the environmental impacts directly associated
`
`
`with the production, distribution, and disposal of the consumer good; and (4) violations of any
`
`federal, state, or local permits directly associated with the production or distribution of the
`
`consumer good. Id., § 17580(a)(1)-(4). The California Legislature declared its intent that the
`
`information and documentation supporting the validity of any environmental marketing claims
`
`shall be fully disclosed to the public, and information and documentation maintained pursuant to
`
`Business & Professions Code § 17580 must be furnished to any member of the public upon
`
`request. Id., § 17580(b), (d). Further, SB 343 amended section 17580 to confirm that a person
`
`who represents in advertising or on the label of container of a consumer good that the consumer
`
`good is not harmful to, or is beneficial to, the natural environment “through the use of a chasing
`
`arrows symbol or by otherwise directing a consumer to recycle the consumer good,” shall
`
`maintain written records substantiating the validity of such representations.
`
`9.
`
`The Green Guides also require marketers to ensure that their claims are supported
`
`by a reasonable basis prior to making the claim. 16 C.F.R. § 260.2. A reasonable basis is defined
`
`as competent and reliable scientific evidence, such as “tests, analyses, research, or studies that
`
`have been conducted and evaluated in an objective manner by qualified persons and are generally
`
`accepted in the profession to yield accurate and reliable results.” Id. “Such evidence should be
`
`sufficient in quality and quantity based on standards generally accepted in the relevant scientific
`
`fields, when considered in light of the entire body of relevant and reliable scientific evidence, to
`
`substantiate that each of the marketing claims is true.” Id.
`
`10.
`
`Under the Green Guides, “A product or package shall not be marketed as
`
`recyclable unless it can be collected, separated, or otherwise recovered from the waste stream
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-6-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 8 of 49
`
`through an established recycling program for reuse or use in manufacturing or assembling another
`
`item.” 16 C.F.R. § 260.12(a). This definition encompasses the three prongs of recyclability that
`
`
`are commonly used in the solid waste industry: (1) accessibility to recycling programs (“through
`
`an established recycling program”); (2) sortation for recovery (“collected, separated, or otherwise
`
`recovered from the waste stream”); and (3) end markets (“for reuse or use in manufacturing or
`
`assembling another item”). The California Public Resources Code similarly defines recycling as
`
`“the process of collecting, sorting, cleansing, treating, and reconstituting materials that would
`
`
`otherwise become solid waste, and returning them to the economic mainstream in the form of raw
`
`material for new, reused, or reconstituted products which meet the quality standards necessary to
`
`be used in the marketplace.” Cal. Pub. Res. Code § 40180.
`
`11.
`
`Defendant has published its own Recycling Playbook that defines recyclability in a
`
`similar manner.5 The Playbook defines recyclability as a system of stages: “(1) Collection
`
`(collection available for a substantial majority of consumers); (2) Sortation (packages are
`
`separated and aggregated for further processing); (3) Processing (commercial processes recover
`
`material); (4) End-Market (the recycled material is used in new products); and (5) Recycling Rate
`
`(at least 30% recycling rate achieved for over 400 million inhabitants).” Thus, Defendant’s own
`
`interpretation of recyclability requires access to recycling programs, sortation, and end markets.
`
`12.
`
`As reflected in the Green Guides’ language and regulatory history, the FTC does
`
`not consider a product to be recyclable unless it is actually recycled. For instance, the Green
`
`Guides provide that: (1) “[i]f any component significantly limits the ability to recycle the item,
`
`any recyclable claim would be deceptive;” and (2) “an item that is made from recyclable material,
`
`but, because of its shape, size, or some other attribute, is not accepted in recycling programs,
`
`should not be marketed as recyclable.” 16 C.F.R. §§ 260.12(a) and (d); see also id. § 260.12(d),
`
`Examples 2 and 6. And in promulgating the current recycling definition that encompasses
`
`
`5 The Recycling Playbook, WALMART, INC., last updated Oct. 25, 2019, accessible at:
`https://www.walmartsustainabilityhub.com/media-library/document/recycling-playbook-
`november-2019/_proxyDocument?id=0000016e-384f-d8af-a96e-beff25150000 (last accessed on
`Feb. 17, 2022).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-7-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 9 of 49
`
`accessibility, sortation, and end markets, the FTC clarified that “[f]or a product to be called
`
`recyclable, there must be an established recycling program, municipal or private, through which
`
`
`the product will be converted into, or used in, another product or package.” See 63 Fed. Reg. 84,
`
`24247 (May 1, 1998) (emphasis added). As the FTC has stated, “while a product may be
`
`technically recyclable, if a program is not available allowing consumers to recycle the product,
`
`there is no real value to consumers.” Id. at 24243.
`
`
`
`PARTIES
`
`13.
`
`Plaintiff Greenpeace Inc. is a non-profit, public interest organization established
`
`pursuant to section 501(c)(4) of the Internal Revenue Code, and headquartered in Washington,
`
`D.C. Greenpeace has worked to combat plastic pollution, to protect California coasts and marine
`
`life from a myriad harms related to plastic pollution, and to ensure that companies do not falsely
`
`tout the environmental benefits of their products when none exist. Greenpeace has standing to
`
`bring this action because Defendant has refused to provide information to Greenpeace that is
`
`subject to mandatory disclosure. Defendant’s continued refusal to provide Greenpeace with
`
`access to this statutorily required substantiation is causing ongoing informational injury to
`
`Greenpeace. Greenpeace also has standing to bring this action because Defendant’s conduct of
`
`representing in advertising or on the label of the Products that the Products are recyclable in
`
`California without being able to substantiate whether the Products are in fact recyclable in
`
`California has frustrated Greenpeace’s mission to ensure that Products labeled as environmentally
`
`beneficial actually benefit the environment. Defendant’s refusal to provide the information it is
`
`legally obligated to provide has caused, and continues to cause, Greenpeace to spend money, staff
`
`time, and other organizational resources in California in response to that frustration of purpose.
`
`Greenpeace has diverted resources, and continues to divert resources, from its state and federal
`
`advocacy efforts to investigate Defendant regarding its unsubstantiated claims, to contact
`
`Defendant seeking substantiation, and to inform the public that Defendant’s claims are
`
`unsubstantiated and therefore unreliable. Thus, Greenpeace has lost money or property as a result
`
`of Defendant’s unlawful and unfair acts and continues to suffer injury in fact due to Defendant’s
`
`ongoing conduct.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-8-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 10 of 49
`
`14.
`
`Greenpeace was formed in 1971 as a global, independent campaigning
`
`organization that uses peaceful protest and creative communication to expose global
`
`
`environmental problems and promote solutions that are essential to a green and peaceful future.
`
`Greenpeace campaigns are science-based and centered on the core values of justice, equity, and
`
`inclusion. Greenpeace pursues its mission through research, reports, surveys, policy proposals,
`
`government outreach and lobbying, coalition building and allyship, advocacy, education, public
`
`demonstrations and rallies, protests, litigation, and press and public outreach. Greenpeace also
`
`
`has many supporters with whom Greenpeace communicates through blog posts, social media,
`
`emails, phone calls, text messages, webinars, and dedicated supporter mobilization.
`
`15.
`
`A core aspect of Greenpeace’s mission is to educate the public with respect to
`
`important environmental issues, such as recycling. Nearly every Greenpeace campaign involves
`
`educating the public on the causes, impacts, and alternatives to products or processes that damage
`
`public health, the environment, or human rights. Examples of such Greenpeace campaigns
`
`include, but are not limited to, educating the public with respect to the hazards of bleached paper
`
`products, chemical additives in plastic toys and household products, mercury in fish, and ozone-
`
`depleting substances in refrigerators.
`
`16.
`
`As part of its many educational campaigns, for over three decades Greenpeace has
`
`engaged in various efforts to expose corporate greenwashing to prevent consumer product
`
`companies from representing their goods as environmentally friendly or benign without adequate
`
`substantiation. Greenpeace has worked tirelessly to expose examples of corporate greenwashing
`
`to protect people from products advertised as environmentally friendly when such products harm
`
`the environment instead. Greenpeace has led campaigns against oil companies, electronic
`
`manufacturers, and consumer good corporations and retailers for touting the environmental
`
`benefits of their products when, in fact, the products manufactured and sold by such companies
`
`caused significant environmental harm. Greenpeace advocates to prevent corporate greenwashing
`
`and educates the public on such greenwashing so that people have the information available to
`
`make informed decisions about the environmental impacts of their purchases.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-9-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 11 of 49
`
`17.
`
`Greenpeace has been working to prevent the proliferation of plastic pollution for
`
`nearly four decades. Greenpeace has had numerous campaigns related to plastic pollution,
`
`
`including but not limited to educating people on greenwashing statements that certain plastic was
`
`biodegradable or recyclable when it was not, exposing the shipment of plastic waste to
`
`developing countries, seeking to replace polyvinyl chloride plastic with less toxic alternatives,
`
`exposing the health problems associated with incinerating plastic, and reducing or eliminating
`
`single-use plastic packaging because of its impacts on the marine ecosystem, the climate,
`
`
`communities, and human health.
`
`18.
`
`Greenpeace’s campaigns related to plastic holistically focus on the lifecycle of
`
`plastic, from the harmful feedstock chemicals used to make plastic to the sheer amount of single-
`
`use plastic generated and ultimately discarded. Greenpeace cares deeply about the proliferation
`
`of plastic because it has witnessed the harmful effects of plastic pollution on various ecosystems
`
`and human health. The goals of Greenpeace’s climate and oceans campaigns call for solutions
`
`that include drastically reducing the use of single-use plastic and finding alternatives to plastic
`
`products and packaging, reusing plastic products when no other alternatives are available, and
`
`properly recycling products if they cannot be eliminated or reused.
`
`19.
`
`Greenpeace’s campaigns related to plastic pollution also include educating the
`
`public about false or unsubstantiated environmental marketing claims, such as informing the
`
`public about the low amount of plastic that is actually recycled and instead ends up in landfills,
`
`incinerators, communities, or the natural environment. Thus, while investigating the low
`
`recycling rates of plastic products, Greenpeace has simultaneously analyzed recyclable
`
`representations present on the labels of products sold by major retailers and manufacturers.
`
`Greenpeace has spent, and continues to spend, substantial time and money engaging with retailers
`
`and consumer product companies to seek substantiation regarding representations that products
`
`are recyclable, to encourage them to reduce the amount of non-recyclable plastic used in their
`
`products and packaging, and to discourage them from representing that products are recyclable
`
`when they are not. Many of these campaign activities have been based in California, and many of
`
`those California-based activities have been directed at Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`D OC U ME N T PRE PA RED
` ON RE C YC L ED PA PE R
`
`
`
`-10-
`
`
`
`THIRD AMENDED COMPLAINT – CASE NO. 3:21-CV-00754-MMC
`
`
`
`
`
`

`

`Case 3:21-cv-00754-MMC Document 58 Filed 02/18/22 Page 12 of 49
`
`20.
`
`A company’s size and scope affect its plastic footprint, and due to Defendant’s
`
`large volume of products made from or packaged in plastic, Greenpeace determined that
`
`
`Defendant is responsible for a substantial amount of plastic pollution. In late 2018, Greenpeace
`
`began research on the plastic and recycling policies and practices of Defendant and other retailers,
`
`leading to the June 2019 release of Packaging Away the Planet.6 Packaging Away the Planet was
`
`a report published by Greenpeace, including significant input from Greenpeace’s California-based
`
`staff, that evaluated the plastic footprint of major U.S. grocery retailers, including Defendant.
`
`
`During the time period that Greenpeace was preparing the Packaging Away the Planet report,
`
`Greenpeace spent money, staff time, and other resources organizing its supporters to raise
`
`awareness of Defendant’s contribution to the proliferation of plastic pollution. For example, on
`
`February 6, 2019, Greenpeace organized a “day of action” in which supporters photographed
`
`Defendant’s plastic pollution in Los Angeles, California and St. Petersburg, Florida to highlight
`
`the amount of single-use plastic pollution generated by Defendant. Greenpeace also created a
`
`petition and paid for it to be circulated on Facebook through Facebook Ads requesting Defendant
`
`to “ditch plastic packaging” and sent out numerous posts to its Twitter followers regarding
`
`Defendant’s failure to reduce single-use plastic. Greenpeace spent approximately