Monday, February 11, 2019

Alkaline water false advertising claim is unappetizing, court rules

Weiss v. Trader Joe’s Co., No. 8:18-cv-01130-JLS-GJS, 2018 WL 6340758 (C.D. Cal. Nov. 20, 2018)

Trader Joe’s sells Alkaline Water, whose label includes:

• “pH 9.5 +”
• “Our Alkaline Water + Electrolytes is ionized to pH 9.5+.”
• “pH is the measure of acidity and alkalinity. The higher the pH, the greater the alkalinity.”
• “ionized to achieve the perfect balance”
• “refresh & hydrate”
• “hundreds of plus symbols” on the label

Trader Joe’s flyer touting Alkaline Water said:
• “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.”
• “The mineralized water is purified through reverse osmosis, then run through electric currents (electrolysis), which changes the structure of the water and raises the pH to 9.5+ (neutral pH of water is 7).”
• “Trader Joe’s Alkaline Water + Electrolytes is water and then some.”

Weiss alleged that the label misled her to believe that the Water was a “superior source of hydration” and could help “balance pH internally.” She further alleged that the Alkaline Water does not actually have a 9.5 pH balance and that “the actual pH at the time of purchase and consumption was far less on the pH scale.” She brought the usual California claims.

The court found that this was all puffery except the “not 9.5 pH” part, and that wasn’t sufficiently pled, a holding I find dubious.

Initially, some of the complaint alleged lack of substantiation of the purported health benefits, which isn’t actionable by private parties under California law. The label and marketing also didn’t make the health claims she identified, because it was mostly mere puffery. E.g., “refresh” was “a vague, generalized assertion incapable of being proved false or of being reasonably interpreted as a statement of objective fact,” as were the plus symbols. Nor did the label claim to be a superior source of hydration, just a source. The “ionized to achieve the perfect balance” claim didn’t claim that consumers would become perfectly balanced or tout any health benefits from the perfect balance.

As for the flyer touting the water as good “[w]hether you’ve just eaten an abundance of corn or cranberries (foods high in acid); or you’ve been sweating profusely,” there was still no health benefit claim.  I think this ignores the effects of implicature. Why would it be relevant to whether you should choose this water that you’ve been eating foods high in acid?  There’s no reason to mention that other than to imply that the water you drink should “balance” your acidity (an impossible task in my case, I fear). But because the flyer finished by claiming to “satisfy,” it was mere puffery. As for “water and then some,” it followed the description of the water as containing 0.1% “minerals (electrolytes), harvested from the lake region of Utah.”

The 9.5 pH claim was factual and falsifiable. However, Weiss failed to plead with particularity “how she came to believe that the representation is false.” That’s a diversion, mostly corrected in the court’s ultimate analysis. We really don’t care how she came to believe that it’s false, or even if she did come to believe that—her belief in falsity is not an element of her claim. We care whether the statement was false. 

And as with so many Twiqbal issues this is all about the court’s common sense: pleading that the pH was not 9.5 is a factual allegation. Is that plausible? Sure, why couldn’t water not have pH 9.5?  Apparently much water doesn’t, according to TJ’s itself. However, the court wants a “basis” for the assertion of falsity. “Even assuming that viewing videos on the internet or personally testing the pH balance of the Water is enough to support her claim,” that wasn’t in the complaint, and the complaint needed to specify when the pH wasn’t 9.5—at bottling, at purchase, or at consumption.  In a footnote, the court warned: “The Court seriously questions Plaintiff’s decision to bring this suit if the only support she has for this claim is what she has seen on the internet, or her own rudimentary testing. Further, the Court reminds Plaintiff’s counsel that attorneys are subject to sanctions under Rule 11 when they present ‘factual contentions [that] have [no] evidentiary support or ... will [not] likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]’”

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