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Ninth Circuit Drowns Out Alkaline Water Suit – Media, Telecoms, IT, Entertainment


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The Ninth Circuit recently affirmed the dismissal of a putative
class action alleging Trader Joe’s misled consumers by
representing its Alkaline Water product as “ionized to achieve
the perfect balance.”  In rejecting plaintiff’
allegations that the advertising referred to balancing the
consumer’s internal pH rather than the balanced pH of the
product itself, the Court recognized “a reasonable consumer
does not check her common sense at the door of a store.” 
Weiss v. Trader Joe’s,
No. 19-55841 (9th Cir. Mar. 3, 2021).

The Alkaline Water product label states the water is
“ionized to pH 9.5+,” will “refresh &
hydrate,” and depicts “hundreds of plus
symbols.”  An advertisement for the water in Trader
Joe’s store newsletter likewise touted that the water was
purified and charged through electrolysis, changing the structure
of the water and raising the pH to 9.5+, making the product
“water and then some.” Plaintiff alleged these
representations were misleading because they implied that the water
would “balance” a consumer’s internal pH after he or
she has eaten acidic foods and would provide superior hydration as
compared to other water.

The district court found several of
these representations (including “water and then some,”
“a drink that can satisfy,” and “refresh”)
constituted non-actionable puffery.  The remaining challenged
statements concerning the drink’s pH and ionization, the court
found, would not mislead a reasonable consumer.

Agreeing with the district court’s analysis, the Ninth
Circuit likewise found a reasonable consumer would not misinterpret
these representations as suggesting internal pH balancing benefits
or superior hydration.  When considered in the context of the
package as a whole, the Court found the phrase “ionized to
achieve the perfect balance” clearly referred to the water
itself being balanced – rather than to balance within the body.

The Ninth Circuit also rejected plaintiff’s allegation that
the term “hydrate” would mislead consumers into believing
the water provided better hydration than other water. Plaintiff did
not dispute that the water does, in fact,
“hydrate.”  Finding this statement about the
water’s hydrating capability true and undisputed, the Ninth
Circuit agreed with the district court that it would not plausibly
deceive a reasonable consumer.

The Court also affirmed the district court’s dismissal of
plaintiffs’ breach of warranty claims based on the same
advertising. The Court noted that though the reasonable consumer
standard technically does not apply to warranty claims, those
claims still require some sort of actionable representation. No
such misrepresentation existed here because nothing in the
challenged labeling promised health benefits or superior

This case serves as a reminder that allegations founded on
fanciful interpretations of advertising claims may cause a
“splash” when filed, but courts exercising common sense
will not hesitate to dispose of them at the pleading stage.
 While the Ninth Circuit’s decision in Weiss is
unpublished, it is consistent with other precedential decisions
from the court.  See for example Ebner v. Fresh, 838 F.3d
958 (9th Cir. 2016) – a case we have previously blogged about.

Ninth Circuit Drowns Out Alkaline Water

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