MDL Court Finds Bottled Water Claims Preempted Under Federal Law

A multidistrict litigation court (MDL) in New York has dismissed putative class claims filed against PepsiCo., Inc. for allegedly misrepresenting the source of its Aquafina® bottled water, “by using a label designed to create the impression that the water came from a mountain source and failing to inform consumers that the true source . . . was public drinking supplies commonly known as ‘tap water.’” In re: PepsiCo., Inc. Bottled Water Mktg. & Sales Practices Litig., MDL No. 1903 (S.D.N.Y., decided December 5, 2008).

The court determined that plaintiffs’ state-law unfair and deceptive trade practices claims were expressly preempted under the Food, Drug, and Cosmetic Act (FDCA). According to the court, “the FDCA’s statutory framework and regulatory history . . . reveal that the FDA specifically addressed the disclosure of source information and determined, in its expert opinion, that representations of source are immaterial in the context of purified water.” The court also concluded, “the FDA never intended or required that purified water include the ‘municipal water supply’ disclosure required for certain types of water, including spring water, and was not concerned with any misleading potential of graphics on bottles of purified water, based on its conclusion that with respect to purified water, the purification, and not the source, is the reason consumers buy it.”