A federal court in Washington has dismissed the second amended consumer fraud complaint filed against Costco Wholesale Corp. concerning its VitaRain® Enhanced Water Beverage; while the court dismissed the complaint without leave to amend, it did not dismiss it with prejudice. Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered November 1, 2013). The plaintiff claimed that the name “VitaRain” is itself deceptive, and the court disagreed, finding it implausible that it could “deceive a substantial portion of the public into believing that the beverage is ‘full of vitamins only’ or that it is a ‘nutritional’ or ‘healthy’ beverage. The name ‘VitaRain’ is largely nonsensical.” The plaintiff also associated the name with another beverage product containing the word “vitamin,” and the court stated in this regard, “Plaintiff’s claim must be limited to the actual representation, ‘VitaRain’ in this case, and not some imagined representation he arrived at through…
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A federal court in California has granted in part the summary judgment motion filed by a coconut water company facing allegations that it overstates the magnesium and sodium content of its “O.N.E.” product and falsely claims that it is a good source of electrolytes. Vital v. One World Co., LLC, No. 12-00314 (C.D. Cal., order entered November 30, 2012). The court dismissed all claims based on a study that allegedly found lower levels of magnesium and sodium than allowed by Food and Drug Administration (FDA) regulations when a product is claimed to be a “good source” of such nutrients. According to the court, the plaintiffs failed to show that the study was conducted under FDA’s § 101.9(g) methodology and would thus impose more stringent requirements on the defendant than federal law. The court allowed the plaintiffs to pursue claims that the product is falsely marketed as a “good source of…
Nestlé Waters North America (NWNA) has removed to federal court a putative class action alleging that the company failed to disclose that its Ice Mountain® 5-gallon bottles are not 100 percent natural spring water, “but are actually resold water sourced from municipal water systems.” The Chicago Faucet Shoppe, Inc. v. NWNA, Inc., No. 12-8119 (N.D. Ill., filed October 10, 2012). The named plaintiff, a company that contracted with NWNA in 2008 to deliver the water bottles to its Chicago office, filed the action on behalf of all purchasers in Illinois, Michigan, Minnesota, and Missouri under Illinois consumer fraud laws. The removal notice claims that under the Class Action Fairness Act, diversity of citizenship exists between putative class members and the defendant and that the amount in controversy exceeds the $5 million jurisdictional threshold. “According to NWNA’s records, since October 2009, more than $5,000,000 of Ice Mountain® brand 5-gallon bottled water has…
A Los Angeles County resident has filed a putative class action against the Austrian and British makers of “Oxygizer” water, claiming that the companies “falsely represent that through a patented process they are able to hyperoxygenate water and that consumption of Oxygizer leads to a number of purported beneficial health effects.” Ghazarian v. Oxy Beverages Handelsgesellschaft mbH, No. BC489773 (Cal. Super. Ct., filed August 7, 2012). Noting that people cannot absorb oxygen through their digestive systems, the plaintiff alleges that the defendants mislead consumers by falsely claiming their beverage can aid athletic performance, transport oxygen to every body cell, strengthen the immune system, and help office workers in large cities make up oxygen deprivation. The companies purportedly claim that scientific tests support their product representations and that their water is patented; the plaintiff alleges that these claims are also false and misleading. According to the plaintiff, the Federal Trade Commission has…
According to a news source, a Los Angeles Superior Court has dismissed a putative class action seeking damages against One World Enterprises LLC for allegedly misleading consumers about the nutritional value and hydrating properties of its coconut water product. Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., dismissed on July 18, 2012). The court apparently agreed with the defendant that part of the plaintiff’s case involved a product representation that was simply “puffery” and stated that marketing a product’s “superior” hydrating power “is not actionable because consumers are used to hearing advertisers make general boasts and were not born yesterday.” The court dismissed the case without prejudice to give the plaintiff an opportunity to replead state-based fraud and false advertising claims about the product’s allegedly false nutritional label. According to the court, the plaintiff “correctly notes federal law will not preempt his claim if the label…
A federal court in California has dismissed with prejudice a putative class action filed in March 2012 against the companies that make a line of SoBe® beverages known as 0 Calories Lifewater®. Hairston v. S. Beach Beverage Co., Inc., No. 12-1429 (C.D. Cal., decided May 18, 2012). Further details about the case appear in Issue 429 of this Update. According to the court, state-law consumer-fraud claims based on the use of fruit names to describe the different Lifewater flavors and the use of common vitamin names instead of the vitamins’ chemical names are preempted by federal law which allows both types of labeling. Food and Drug Administration (FDA) regulations, said the court, “explicitly permit manufacturers ‘to use the name and images of a fruit on a product’s packaging to describe the characterizing flavor of the product even where the product does not contain any of that fruit, or contains no fruit…
A California resident has filed a putative class action in a California federal court against the companies that make a line of SoBe® beverages known as 0 Calories Lifewater®, alleging that the product labels and promotions are misleading. Hairston v. S. Beach Beverage Co., Inc., No. 12-1429 (C.D. Cal., filed February 21, 2012). According to the plaintiff, the companies label the product as “all natural” despite purported non-natural and synthetic ingredients, such as ascorbic acid, cyanocobalamin, calcium pantothenate, niacinamide, and pyridoxine hydrochloride, which are apparently listed on product labels as Vitamins C, B12, B5, B3, and B6, respectively. He claims that reasonable consumers “do not have the specialized knowledge necessary to identify ingredients in SoBe Beverages as being inconsistent with the ‘All Natural’ claims.” The plaintiff also alleges that the companies deceive consumers by using the names of fruits on the labels. For example, the “B-Energy Strawberry Apricot, does not…
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…
The Food and Drug Administration (FDA) has announced changes to its bottled water quality standard “by establishing an allowable level for the chemical di(2-ethylhexyl)phthalate (DEHP).” Effective April 16, 2012, the final rule establishes “in § 165.110(b)(4)(iii)(C) (21 CFR 165.110(b)(4)(iii)(C)), which includes allowable levels for pesticides and other synthetic organic chemicals, an allowable level for DEHP at 0.006 mg/L.” It also requires manufacturers to monitor their products “for DEHP at least once each year under the current good manufacturing practice (CGMP) regulations” and to monitor their source water “as often as necessary, but at least once every year unless they meet the criteria for source water monitoring exemptions under the CGMP.” According to FDA, the amended rule brings bottled water standards in line with those set by the Environmental Protection Agency (EPA) for public drinking water. The two comments opposing the rule change evidently did not provide enough evidence to challenge…
While settlement terms are apparently confidential, a high-end bottled water company has reportedly settled its claims against a company that supplied bottles which reacted to the water by causing foaming and a poor taste. Penta Water Co. v. Zuckerman-Honickman, Inc., No. 09-2633 (E.D. Pa., dismissed with prejudice September 21, 2011). The water company evidently switched to the defendant’s bottles in conjunction with the launch of a campaign intended to broaden its customer base beyond athletes, celebrities and health food consumers. The alleged bottle defect forced the plaintiff to halt the campaign, close its manufacturing plant and undertake “crisis management.” The packaging company and the water bottler have both reportedly undergone bankruptcy proceedings. See Law360, September 22, 2011.
