Lawsuit Claims “Hyperoxygenated” Water Fails to Deliver Promised Benefits

A California resident has filed a putative nationwide class action against
Austrian and British companies that sell Oxygizer®, a “designer water” product
promoted as an athletic performance aid, alleging that increased oxygen
content cannot deliver the benefits claimed. Ghazarian v. Oxy Beverages
Handelsgelsellschaft mbH, No. 11-8860 (C.D. Cal., filed October
26, 2011). The companies purportedly promote the product with claims that
(i) it aids rapid muscle recovery by increasing the level of oxygen in the body,
(ii) the glass bottle eliminates or reduces oxygen loss, (iii) it is the only water
with a proven positive effect on the body, (iv) the product is patented, (v) it
transports oxygen in body cells to regenerate them, (vi) the water strengthens
the immune system and improves cardiovascular and respiratory function,
and (vii) it helps office workers who are deprived of oxygen in large cities.

According to the plaintiff, each of these claims is false. She cites several
studies refuting the claims and notes that the Federal Trade Commission has
brought actions against other “oxygen water” companies for deceptive trade
practices. The plaintiff alleges that she purchased one bottle of the water and
“did not and could not have obtained any of the beneficial effects of the water
advertised by the defendants.” Alleging fraud, negligent misrepresentation
and unfair trade practices, the plaintiff seeks special, general and punitive
damages; attorney’s fees and costs; restitution; and injunctive relief, including
requiring the companies to change the product’s name and cease making the
alleged misrepresentations.