Lifewater "all natural" claim not deceptive, other challenges preempted

Hairston v. South Beach Beverage Co., Inc., 2012 WL 1893818 (C.D. Cal.)

Hairston brought a putative class action asserting the usual California false advertising and warranty claims based on SoBe’s sales of Lifewater, no-calorie, vitamin-enhanced, flavored water drinks; he alleged that he was a frequent purchaser of the MacIntosh Apple Cherry, Strawberry Kiwi Lemonade, and Black Cherry Dragonfruit flavors, though not the B–Energy Strawberry Apricot flavor.

The allegedly deceptive statements on the label were: (1) “All natural,” because Lifewater contains six ingredients that are “synthetic or created via chemical processing.”  (2) Flavor names, because Lifewater doesn’t contain any actual fruit or fruit juice, but the names allegedly contribute to the “all natural” image.  (3) Use of the common vitamin name such as B12, again because the vitamins in Lifewater are synthetic or created via chemical processing.

First, the court found that the claims based on fruit names and common vitamin names were preempted.  Hairston apparently conceded that those claims standing alone were preempted, but argued that they contributed to the deceptive “all natural” message.  The court didn’t buy that distinction, since the FDCA/FDA have regulated the circumstances under which a product can use the name of a “characterizing flavor” and the common names of vitamins.  Hairston wasn’t allowed to avoid preemption by characterizing these as part of his “all natural” claims, which might result in a patchwork of different state standards.

As to the remaining “all natural” claims, though questions of deceptiveness are usually not amenable to motions to dismiss, sometimes a court can resolve such claims based on its own review of the allegedly deceptive material.  Once the preempted claims were removed, Hairston’s claim was “based on a single out-of-context phrase found in one component of Lifewater's label.”  Such selective interpretation of individual words or phrases couldn’t support a CLRA, FAL, or UCL claim.  The “all natural” language on the label was immediately followed by the additional statement “with vitamins” or “with B vitamins.”  Because the phrase isn’t used in a vacuum, it would be impossible to allege how the language was deceptive without relying on preempted statements about fruit names and vitamins.  (This seems like a necessarily limited conclusion based in fact on an underlying puffery/lack of falsifiability determination rooted in the uncertain definition of “all natural.”  If the statements about vitamins/flavors had, for example, instead been about their geographic source, or even had been a specific nonpreempted health claim, it seems implausible to conclude that preemption would extend beyond allowing the use of the vitamin name/characterizing flavor name to other statements about the product, even if they were linked on the label.)

Additionally, the court found that no reasonable consumer would read “all natural” as modifying “with vitamins” and believe that the added vitamins are supposed to be “all natural vitamins.”  (Hunh?  It means “all natural except for the vitamins”?)  Any ambiguity was clarified by the ingredient list, which reasonable consumers expect to contain more detailed information that confirms other representations on the packaging.  Here, the ingredient list was consistent with the front label of “all natural with vitamins,” as well as with the idea that Lifewater was a flavored water beverage and not a juice. 

The court also dropped a footnote saying that Hairston lacked Article III standing to challenge the B-Energy product, which he didn’t buy.

Finally, Hairston’s breach of express warranty claim failed because the California warranty statute is inapplicable to any written warranty the making or content of which is otherwise governed by Federal law, and FDCA/FDA regulations governed the challenged labeling.  Even if they didn’t, Hairston failed to allege sufficient facts to establish that the label created a “written warranty” because it didn’t promise a defect-free product or guarantee a level of performance over a specific time period.  The challenged statements were “product descriptions” rather than promises related to defects or performance.  Indeed, because Lifewater would be consumed immediately and not used repeatedly over time, it would be impossible to allege a temporal element.  (“Guaranteed fresh”?)  It also wasn’t a warranty because it didn’t promise refund, repair, or replacement if the product failed to meet specifications.