In a lawsuit* filed in California late last month, plaintiff Dana Weiss says the water - which contains “electrolytes for taste” and states a pH of 9.5 (vs the standard pH of around 7 for water) - comes with a premium price tag, and is presented as delivering benefits that cannot be supported by evidence.
The water – described as “ionized to achieve the perfect balance” and designed to “refresh and hydrate,” features “hundreds of plus symbols superimposed on the packaging, a universal sign of gaining health, when in reality the product is no different than drinking any bottled water or tap water,” says the complaint.
‘Trader Joe’s ‘does not have a single study’ to support its claims
But it added: “There is no genuine scientific research and there are no scientifically reliable studies in existence that support the extraordinary claims of Defendants, or that alkaline branded water provide a superior benefit to a consumer.”
Trader Joe’s advertising and marketing “would lead the reasonable consumer to believe that Trader Joe’s Alkaline Water is a superior product to other waters,” argued the complaint. “[In its] marketing materials, Trader Joe’s represented ‘whether you've just eaten an abundance of corn or cranberries (foods high in acid); or you've been sweating profusely; and/or you've been reading this Flyer (because obviously that would make you thirsty) our Alkaline Water + Electrolytes is a drink that can satisfy.”
“[But] defendants do not have a single study to show that their water is ‘perfectly balanced’ or will provide added hydration compared to other water.”
The lawsuit does not explain what testing methodology was used, but added: “Defendants’ product does not even maintain or have when bottled and/or sold, the alkalinity represented on the packaging of 9.5+. The water is more acidic than as represented.”
Trader Joe’s has not responded to requests for comment.
Attorney: Proving there are false implied health benefit claims will be close to impossible for the plaintiff
While the alkaline water category has grown significantly in recent years, many brands in the space are careful not to make specific claims about the benefits of a higher pH, and have instead focused on the fact that adding electrolytes such as potassium and sodium can replace minerals through sweat after vigorous exercise, thus providing ‘superior’ re-hydration vs regular water.
But Trader Joe’s is not even going this far, noted Winston & Strawn partner Ronald Rothstein, and merely states that its product can “refresh and hydrate.”
Provided its pH is as stated on the bottle (9.5), Trader Joe’s has little to worry about, Rothstein told FoodNavigator-USA: “This is classic overreach by the plaintiff. If the alkalinity level is as stated then Trader Joe’s has nothing to be concerned about.
“The claims ‘ionized to achieve the perfect balance’ and ‘refresh and hydrate’ with hundreds of plus symbols superimposed on the packaging’ are puffery at best, while the allegation that the plus symbols are ‘a universal sign of gaining health’ is unsupported and unprovable.”
Asked whether the mere fact that Trader Joe’s gives the elevated pH top-billing on pack amounts to an implied claim (or why mention it?), he added: “Proving there are false implied health benefit claims will be close to impossible for the plaintiff.”
Does alkaline water provide any benefits?
Right now, the evidence that alkaline water confers a health benefit is "preliminary and nascent, and may be product or brand specific," Anthony Almada, president and CSO at 'nutritional tech' consultancy IMAGINutrition, told FoodNavigator-USA. "The evidence is suggestive at best.
"Each of these alkaline waters are chemically different, so you can't just quote studies on other brands [to support your claims]. But there is some evidence that alkaline water might inactive a digestive enzyme called pepsin which is suspected to be part of the problem with acid reflux, while there is also a theory that if you ionize water in a machine you create hydrogen gas, which, if it is retained in the bottle of water, may have effects that are independent of the pH of the water."
A 2012 study published in the Annals of Otology, Rhinology & Laryngology concluded that, "Unlike conventional drinking water, pH 8.8 alkaline water instantly denatures pepsin [an enzyme produced by the stomach that can be damaging if it refluxes into the oesophagus], rendering it permanently inactive. In addition, it has good acid-buffering capacity. Thus, the consumption of alkaline water may have therapeutic benefits for patients with reflux disease."
A 2017 study published in JAMA suggested that a 'wholly dietary approach' combining alkaline water and a 'plant-based, Mediterranean-style diet' could be as effective at treating Laryngopharyngeal reflux as proton pump inhibition, but the study design did not enable researchers to explore whether alkaline water had an effect independent of the diet, noted Almada.
A 2018 study in the American Journal of Otolaryngology–Head and Neck Medicine and Surgery also showed that an anti-reflux program combining diet, alkaline water, medications, and behavioral modifications compared favorably with medication and behavioral modification alone for subjects with laryngopharyngeal reflux (LPR) symptoms - but again, did not isolate whether alkaline water alone conferred benefits.
Plaintiff must prove claims are false
Amin Talati Upadhye attorney Ryan Kaiser anticipated that plaintiffs would struggle to make headway: “This is going to be a tough one for plaintiff’s to prove… For any non-label claims, they’re going to need to prove which consumer saw and relied on those specific claims.
“What’s worse, these don’t appear to be establishment claims, and thus the plaintiff will need to prove that the claims are untrue, not merely that Trader Joe’s doesn’t have substantiation [in cases like this, private plaintiffs must prove Trader Joe’s claims are false; not just that there is a lack of clinical data to support them]. Given the way the challenged claims are presented, I’m not sure how they’re planning to do that, but I’m sure it will be entertaining to watch.”
pH levels – will the plaintiff’s testing methodology hold up in court?
Of all the arguments, said Kaiser, the one with the most potential is the allegation that the pH levels are not as high as those stated on pack, an “objectively verifiable” express claim. “If it’s not true, Trader Joe’s will have some issues. However, testing methodology will be key. I would be willing to bet that, assuming the plaintiff’s counsel bothered to test the pH levels, they used a non-scientific testing methodology that won’t hold up in court.”
He added: “We’ve seen plaintiffs’ attorneys using crude litmus paper testing strips to form their conclusions. If that’s the case here, Plaintiff if going to need to get some more sophisticated testing… and hope for the same results.”
Wendel, Rosen, Black & Dean partner William Acevedo, meanwhile, argued that Trader Joe’s had been pretty careful with its wording.
“The labeling simply says, ‘refresh and hydrate,’ which does not imply any claim of superiority, nor does this statement or a plus symbol alone necessarily suggest any express or implied health claims.”
Adam Fox, partner at Squire Patton Boggs, was more blunt: “By definition, its consumption will ‘hydrate’ the consumer.”
Whether it will ‘refresh’ that consumer, meanwhile, “seems to me so vague as be nonactionable puffery,” he added.
As ‘perfect balance,’ the phrase is so vague that it’s going to be hard to argue “deliberate intent to mislead consumers into believing in some unspecified health benefit,” he observed.
*The case is Weiss v Trader Joe’s Company 8:18-cv-01130, filed on June 25 in the central district of California by the Lindemann law firm.
The plaintiff alleges breach of express warranty, unjust enrichment, violations of the consumer legal remedies act, unfair competition law, false advertising law, and breach of implied warranty of merchantability.