- An Illinois federal judge has granted Danone Waters of America’s request to dismiss a proposed class action lawsuit alleging that Evian spring water is falsely labeled as “natural” even though it contains microplastics because the claims are preempted by federal law. The lawsuit, which was filed in Illinois state court then removed to federal court in March, alleges violations of various consumer protection statutes, common law fraud, and unjust enrichment.
- According to the complaint, the plaintiffs and class “paid a premium price for premium products, but instead received non-premium products,” because microplastics are not “natural.” However, the judge held that the terms “spring water,” which is federally regulated, and “natural” are intertwined. As long as the water meets FDA’s standard for “spring water,” then it is, by extension, “natural.”
- FDA defines “spring water” at 21 CFR 165.110(a)(2)(vi) as “water derived from an underground formation from which water flows naturally to the surface of the earth.” The judge explained that the regulation uses the word “natural” seven times to describe the source of the “spring water.” Therefore, any water that comes from a “natural spring” can be labeled as “natural spring water.” Because the regulation does not impose any further requirement for use of the word “natural,” any claim that imposes such a requirement beyond identification of the water’s source is preempted.
- There have been multiple other consumer fraud claims based on the presence of microplastics in federally regulated bottled water that have been similarly found to be preempted, including one that we discussed on this blog. However, in those cases, the courts based their reasoning on the fact that the bottled water regulations do not mention microplastics. Here, though, the judge found that it is unnecessary to address any requirement regarding microplastics to determine the scope of the term “natural.” According to the judge, “[w]hether the regulation imposes requirements regarding the content of ‘spring water,’ including whether the presence of microplastics might violate those requirements, is irrelevant to this logic.”
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National Law Review, Volume XIV, Number 317