Sign Up for PublicationsMicroplastics Litigation: The Next PFAS?
With the recent uptick in lawsuits alleging harm caused by microplastics, many are wondering whether there will be another sprawling litigation similar to that regarding Per- and Polyfluoroalkyl Substances (PFAS). Just like PFAS (typically referred to as “forever chemicals”), microplastics are ubiquitous and non-degradable. They are in the water we drink, the food we eat, and the consumer products we use. According to the EPA, “[m]icroplastics have been found in every ecosystem on the planet, from the Antarctic tundra to tropical coral reefs, and have been found in food, beverages, and human and animal tissue.” But a critical question is: how much microplastic exposure is unsafe for humans? Although there is not yet a clear answer, the plaintiffs’ bar has taken an aggressive stance against manufacturers, marketers, and sellers of consumer products containing microplastics, and this will continue as more evidence concerning the dangers of microplastic exposure is discovered.
Microplastics are plastic particles ranging in size from 5 millimeters (about the size of a pencil eraser) to 1 nanometer (a sheet of paper is about 100,000 nanometers thick). They can be manufactured for use in consumer products (primary microplastics) or they can be shed from larger plastic materials, like food wrapping or plastic bottles (secondary microplastics). The scientific community has been researching the potential harmful effects of microplastics on the environment and our health. Microplastics, like forever chemicals, have been found in virtually all freshwater sources on earth, and have seen detected in human bodily fluids, organs, and bones. Relationships are being investigated between microplastics exposure and serious medical conditions, including blood vessel dysfunction, dementia, strokes, heart attacks, and certain types of cancer, but to date there are no conclusive findings of a causative link to such conditions. The numerous types and sizes of microplastics, a lack of data regarding harmful dosage rates, and the presence of confounding factors are obstacles to this ongoing research. It has also been posited that microplastics act in conjunction with other factors harming different bodily systems over many years, making it more difficult to tie microplastic exposure to a specific illness or condition.
The federal government has regulated some forms of microplastics, e.g., the Microbead-Free Waters Act is aimed at protecting aquatic life by prohibiting the use of microplastics in personal care products like toothpaste. Additionally, California, New Jersey, and Washington have enacted laws requiring reductions of “unnecessary” plastic packaging, and for such packaging to be recyclable. However, more expansive legislation that would prohibit the discharge of microplastics into water bodies throughout the U.S. has stalled in Congress.
Enter the plaintiffs’ bar. To date, microplastics litigation has largely centered on “greenwashing” consumer protection claims stemming from alleged misrepresentations of the quality and composition of consumer products, and public nuisance claims brought against businesses allegedly contributing to plastic pollution that harms the environment.
Bottled water companies were an initial target of greenwashing claims, with consumers alleging that the marketing of water as “natural,” “pure,” and/or “100% natural spring water” violated state consumer protection laws due to the presence of microplastics. The consumer class actions were largely brought in Illinois and California, but the claims were dismissed at the pleading stage based on: failure plausibly to allege the water contained in the Fiji bottles contained microplastics (Daly v. Wonderful Co., LLC, 2025 WL 1331750 (N.D. Ill. May 7, 2025)); express federal preemption by the Food, Drug and Cosmetic Act’s regulation of “spring water” (Slowinski v. BlueTriton Brands, Inc., Case No. 1:24-cv-00513, Dkt. 23 at *23-24, (N.D. Ill. August 9, 2024); Bruno v. BlueTriton Brands, Inc., 2024 U.S. Dist. LEXIS 98451, at *2 (C.D. Cal. 2024)); and failure to allege that a reasonable consumer would be deceived by the presence of a microscopic amount of plastic in “100% natural” water (Slowinski, Case No. 1:24-cv-00513, Dkt. 23 at *27).
In an attempt to avoid the federal preemption issue, greenwashing lawsuits have expanded to other consumer products, including infant-care products. A recent nationwide consumer class action was brought against WaterWipes, a baby wipes manufacturer, alleging the presence of a high amount of microplastics in its baby wipes marketed as “pure,” and plastic free. Devery Merlo v. Water Wipes (USA) Inc., Case No. 3:25-cv-04640 (N.D. Cal. 2025). This lawsuit follows the dismissal of false advertising claims brought against the maker of plastic baby bottles, primarily on the grounds that plaintiffs failed to show that the amount of microplastics leaching into the warmed-up baby bottles was unsafe. Cortez v. Handi-Craft Co., Inc., 2025 WL 1452561, at *5 (N.D. Cal. Apr. 29, 2025). Additionally, a similar class action was brought against the maker of Ziploc bags, which marketed its bags as “microwave safe.” Although microplastic greenwashing claims have been largely unsuccessful so far, companies that sell consumer products in plastic packaging are likely to face similar lawsuits going forward.
The plaintiffs’ bar is also following the PFAS playbook in bringing public nuisance lawsuits against microplastic polluters. After surviving demurrer in California Superior Court on its nuisance claims against Coca-Cola and others, a not-for-profit organization has begun entering into settlements with defendants aimed at “reducing plastic and plastic pollution.” Further, the City of Baltimore has pending claims against Coca-Cola and others, alleging that their distribution of single-use plastic packaging has cost the city “tens of millions of dollars” in clean-up costs and that the environmental and health impact from microplastics is harming the general public.
If microplastics litigation continues to follow the PFAS framework, the next shoe to drop may be personal injury lawsuits alleging that the accumulation of microplastics in the body was a cause of a plaintiff’s serious medical conditions. If and when these claims are brought will depend on the outcome of continuing research in the area of microplastics.