A federal judge has shut off a class action lawsuit accusing the bottlers of Evian water of misleading consumers over whether the water can be labeled as “natural” spring water.
Michael Daly and Michael Dotson sued Danone Waters of America in federal court in Chicago, alleging the company violated Illinois and California consumer fraud laws because its “natural” water contains microplastics leached from bottles.
In an opinion filed Nov. 5, U.S. District Judge Thomas Durkin granted the company’s motion to dismiss the complaint.
The consumers argued that federal laws regulating the marketing of “spring water” don’t apply to their claims about the word “natural” on Evian packaging, which they say isn’t covered under the Food, Drug and Cosmetic Act.
“This is likely because, as Danone points out, the regulation does not mention microplastics,” Durkin wrote. “The problem with plaintiffs’ argument is that the terms ‘natural’ and ‘spring water’ cannot be separated. The regulation uses the word ‘natural’ seven times, and each instance is used to describe the source of the ‘spring water.’ ”
If the water comes from “natural flow” through a “natural orifice,” Durkin wrote, it can carry the “spring water” label — “and by extension” the word “natural,” he concluded.
“The regulation imposes no further requirement for use of the word ‘natural’ in a label. And any claim that imposes a requirement for use of the word ‘natural’ beyond proper identification of the water’s source goes beyond the regulatory requirements and is thus preempted," Durkin wrote.
Durkin further cited “at least three other cases that have addressed consumer fraud claims based on the alleged presence of microplastics” in water that falls under federal regulations, including spring water. Although those cases included other label terms, such as “purified” or “100%,” the end results were judicial findings “that the requirements for proper use of the label terms could not be separated from the regulations for the particular type of ‘bottled water.’ In other words, a claim based on falsely using the descriptive term in a label (in this case, ‘natural’) could not impose any requirements beyond those imposed by the regulation for the type of bottled water in question (in this case, ‘spring water’).”
Although Durkin said he agreed with those conclusions, he elucidated his own reasoning.
“The other courts found that, absent mention of microplastics in the regulations, the regulations cannot impose any labeling requirements concerning the presence of microplastics in the water,” Durkin wrote. “It is unnecessary, however, to address whether the regulation imposes any requirement regarding microplastics in order to determine the preemptory scope of the term ‘natural.’ ”
Only water that comes from a natural spring can be sold as spring water, he said, and the federal regulation is concerned only with the water’s original source. Whether the presence of microplastics might violate requirements about the contents of the bottle “is irrelevant to this logic,” he concluded, rejecting the plaintiffs' argument that “the term ‘natural’ is clearly a statement about the quality and content of the water.”
Durkin dismissed the complaint but granted the plaintiffs until Dec. 6 to amend their pleadings.
Following the ruling, Danone released a statement in response to questions from The Record: “While we do not typically comment on active litigation, Evian applauds the court’s decision to grant Danone Waters of America’s motion to dismiss the plaintiff’s complaint and stands by the quality of our products. Bottled water is comprehensively regulated as a food product by the U.S. Food and Drug Administration, and our bottling processes adhere to strict practices for hygiene, quality control, and food safety standards. As such Evian water products comply with FDA regulations.”
Plaintiffs are represented in the case by attorneys Todd M. Friedman and Steve G. Perry, of the Law Offices of Todd M. Friedman, of suburban Northbrook and Woodland Hills, California.