Judge Rules Aquafina Suits Pre-empted, Source of Water Not Relevant to 'Purity'

An attempt to sue PepsiCo for misrepresenting that Aquafina water comes from a pure mountain spring and not from public water supplies has been defeated by federal pre-emption.

Plaintiffs in multidistrict litigation claimed they believed that the iconic picture of mountains with a red-orange sun behind them on the label accompanied by the slogan "Pure Water-Perfect Taste" meant that bottled water came from a pure stream. But they lost out because the federal Food and Drug Administration defines purity and Aquafina fits its definition.

Southern District of New York Judge Cathy Seibel granted PepsiCo.'s motion to dismiss in the consolidated class action of In re: PepsiCo Inc. Bottled Water and Sales Practices Litigation, lead MDL No. 1903.

Plaintiffs in several actions sued for unfair and deceptive trade practices in violation of state consumer protections statutes, unjust enrichment and violation of the Song-Beverly Consumer Warranty Act.

In addition to the blue squiggle representing the mountains and the orange-red circle representing the setting or rising sun behind them, the plaintiffs cited the bottle's product description as "Purified Drinking Water" as misleading. They also cited a statement on the back of the label reading "BOTTLED AT THE SOURCE P.W.S." -- which they claimed was an abbreviation for "Public Water Supply."

On July 27, 2007, PepsiCo publicly agreed that Aquafina water was from public drinking supplies, allegedly agreed to re-label the drinking water and released a statement saying "If this helps to clarify the fact that the water originates from public sources, then it's a reasonable thing to do."

The Judicial Panel on Multidistrict Litigation consolidated the cases in the Southern District on Feb. 28.

In one complaint, plaintiffs said they were "shocked and surprised to learn ... that the true source of the water in Aquafina" was tap water "and that they had paid a premium price for tap water."

The defense moved to dismiss on the grounds that the claims were pre-empted by the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §343-1(a)(1) as well as under the doctrine of implied conflict pre-emption. They also claimed plaintiffs' pleadings fell short in other respects.

Seibel said that state laws are not pre-empted to the extent that the plaintiff does not seek "to impose a requirement beyond or different from federal law."

The structure of the FDCA and its regulatory history, she said, show that the Food and Drug Administration "specifically addressed the disclosure of source administration and determined, in its expert opinion, that representations of source are immaterial in the context of purified water."

The FDA considered a proposed rule change in 1995, and stated, in response to a comment on the change, that the "use of certain graphics on a label of bottled water may be misleading to consumers if the source of the water is different than the source depicted or implied."

And if the product is from a "community water system, the label must clearly disclose this fact except as provided in §165.110(a)(30(ii)."

The problem for the plaintiffs, Seibel said, is that the subsection "explicitly exempts purified water from the source disclosure requirement."

"Thus, while it is clear that the FDA contemplated that marketing techniques could potentially mislead consumers into believing that bottled water sourced from municipal supplies was actually 'spring water,' it is also evident that the FDA determined that such concerns are irrelevant in the context of purified water," Seibel said. "Indeed, the final rule is replete with evidence that, in contrast to spring water, the FDA concluded that because purified water, from whatever source, has been treated to meet purity standards, its source is immaterial to reasonable consumers."

Therefore, the judge ruled that the claims were barred under both theories of pre-emption -- first, that "federal law is not silent" on the subject and, second, because, Aquafina fits the exception for purified water under the FDCA, "plaintiffs' state law claims by necessity are premised on requirements that are not parallel to those imposed by federal law."

Jeffrey A. Klafter of Klafter Olsen & Lesser in White Plains, N.Y., was lead and liaison counsel for the plaintiffs.

"We're studying the decision and considering whether to appeal," Klafter said.

Louis M. Solomon of Proskauer Rose, represented PepsiCo Inc. and The Pepsi Bottling Group Inc.

Mark Hamblett
New York Law Journal
December 19, 2008

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