According to plaintiff Dana Weiss, who filed a lawsuit vs Trader Joe’s in California this summer, Trader Joe’s is duping shoppers into paying over the odds for its alkaline water given that “There are no scientifically reliable studies in existence that support the extraordinary claims of Defendants, or that alkaline branded water provides a superior benefit to a consumer.”
However, Trader Joe’s insisted that it neither states nor implies that its alkaline water is any better for you than regular bottled water (prompting some to wonder why alkaline water – which commands a price premium – has become such a large category):
“Nowhere on the label does Trader Joe’s represent that the product will have any particular effect on the body, stomach, or bloodstream superior to other bottled water.”
The case has attracted some interest given the size of the alkaline water category and the lack of data to support the notion that drinking it will confer any benefits.
However, a November 20 order from US District Judge Josephine L. Staton, dismissing the case suggests that as long as brands in this space simply state that the water has a higher pH, and make generic references to things like refreshment, but don’t say that the elevated pH will confer any benefits, they may be on safe ground.
‘The court finds that most of defendant’s representations are nonactionable’
In a 17-page document filed on November 20, Judge Staton concluded that: “The court finds that most of defendant’s representations are nonactionable in that they either amount to puffery or otherwise would not deceive a reasonable consumer as a matter of law.”
Drilling down into the specific statements deployed by Trader Joe’s on pack, she added: “The court finds that the statement ‘water and then some’ is mere puffery – the statement has no discernible meaning and is thus incapable of being proven true or false.”
Meanwhile, “The word ‘refresh’ and the ‘hundreds of plus symbols’ on the label are mere puffery upon which a reasonable consumer could not rely. That the water will ‘refresh’ consumers is a vague, generalized assertion incapable of being proved false or of being reasonably interpreted as a statement of objective fact.
“Likewise, though plaintiff claims that plus symbols are a ‘universal sign of gaining health,’ the court finds that the symbols make no specific or measurable claim and thus are mere puffery.”
Does the phrase ‘perfect balance’ refer to the body, or to the water itself? And what does it mean?
While the plaintiff argued that the on-pack claim that the water “is purified through reverse osmosis then ionized to achieve the perfect balance,” implies that drinking water with an elevated pH provides some kind of ‘balance’ in the body to offset a high acid diet, the statement does not actually say this, said the judge.
“The water’s label does not claim that there are any health benefits from any particular internal pH balance. In short, the label makes no claims about consumers achieving a 'perfect balance' by virtue of drinking it.”
‘In an amended complaint, plaintiff must allege the factual basis for her belief that the 9.5 pH claim is false’
As predicted by attorneys quizzed by FoodNavigator-USA about the case after it was filed, the one part of the lawsuit where the court felt where was potentially a case to answer related to the allegation that the pH of the water was not, in fact, 9.5, as stated on pack.
In her original complaint, however, the plaintiff did not explain the basis for her allegation that, “The 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.”
According to the judge: “Because it is possible that plaintiff could plead more facts and allege with proper particularity that the 9.5 pH representation is false, the court grants her leave to amend as to this allegation. In an amended complaint, Plaintiff must allege the factual basis for her belief that the 9.5 pH claim is false.”
Alkaline water firms have been careful not to make hard claims on pack
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 (while others add small amounts of electrolytes 'for taste').
But Trader Joe’s did not even go this far, Winston & Strawn partner Ronald Rothstein told us, and merely stated that its product can “refresh and hydrate.”
Some commentators have argued that if the elevated pH, and vague references to ‘perfect balance’ don’t actually mean anything, and don't imply a benefit, why put them on the label, or indeed why sell alkaline water - which commands a price a premium - at all? However, Trader Joe's is on safe legal ground provided its pH is as stated on the bottle (9.5), Rothstein told FoodNavigator-USA.
Attorney: 'The court correctly determined that there were no statements that were provably false or misleading'
He added: “As I predicted, the court found the statements were either non-actionable puffery or would not deceive reasonable consumers. The court also sent a warning shot at the plaintiff suggesting Rule 11 sanctions for bringing claims based on unsupported factual contentions. Although there appears to be a slight opening for the plaintiff to overcome the Rule 9(b) dismissal, the plaintiff’s own rudimentary testing and anecdotal evidence gathered from the internet will not suffice to overcome dismissal.
"Absent some objective benefit stated in the advertising, the court correctly determined that there were no statements that were provably false or misleading."
The argument that giving the elevated pH top-billing on pack amounts to an implied claim (or why mention it?) is not legally sound, he added: "Simply stating the purported alkalinity of the product and a price premium is not enough to presume a benefit that could support a false advertising theory."
'Manufacturers should specify the pH refers to the time of bottling'
John Burlingame, partner at Squire Patton Boggs, said: “The Weiss opinion reached the right result, recognizing plaintiff’s claims overwhelmingly were non-actionable puffery.
"For alkaline water manufacturers, one insight is that as long as they simply state their water is higher in pH, they should avoid false advertising claims. Leave it up to the consumer if water with a higher pH is something they want to buy and why they want to buy it.”
But he added: "If they are going to specify a minimum pH level, they better ensure they met this threshold. And if there is risk the threshold will drop between the time the water is bottled and when the consumers opens the bottle, manufacturers should specify the pH refers to the time of bottling."
Trader Joe's did not respond to a request for comment on the ruling.
*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.