N.D. Illinois Holds that Natural Water Class Action is all Wet

One of the break-through moments in the first year of law school is when your Contracts professor distinguishes actionable promises from mere “puffery.” Not every statement invites reliance.  You cannot take every statement by a seller literally. The concept of non actionable puffery is the law’s way of telling us to grow up, to get real.  

Right now there is a rash of consumer fraud actions where the literal is exalted over the logical.  Plaintiff attorneys pretend to be aggrieved over hyper-technical departures from “natural,” “organic,” or, Heaven help us all, “vanilla.”  

Slowinski v. Blue Triton Brands, Inc., 2024 U.S. Dist. LEXIS 142909 (N.D. Illinois Aug. 9, 2024), is about something even plainer than vanilla — water. Normally we introduce a case by describing it in colorful and, if we are lucky, clever terms. But the Slowinski decision does the work for us. It comes at us in delightful, humorous prose.  Judge Seeger begins by describing how the plaintiffs walked into a grocery store and bought water bottles that showed “a snow-capped mountain towering over an idyllic landscape, surrounded by blue skies and evergreen trees. Down below, the reflection of the mountain appears on a body of cool, refreshing, thirst-quenching water. If the ice-covered mountain doesn’t make you thirsty, then the serene glacial lake probably will.”

It seems like Judge Seeger would be mighty good at writing ad copy. He is certainly good at writing readable judicial opinions. 

Anyway, what could possibly be wrong with the picture of a snow-capped mountain?

The plaintiffs alleged that the water packaging lied when it referred to “100% Natural Spring Water.”  The plaintiffs complained that the water is contaminated with chemical compounds that come from microplastics.  The plaintiffs contended that the plastics migrated from the bottle into the water itself. They filed a class action in Illinois state court asserting actions for violations of the Illinois Consumer Fraud statute, common law fraud, and unjust enrichment.  The defendant removed the case to federal court and then moved to dismiss the case. 

The Slowinski decision grapples with what is “spring water” for purposes of FDCA express preemption.  The FDA has minutely defined “spring water” and microscopic bits of microplastics are not mentioned.  As long as the water comes from a natural spring, it’s “spring water.”  Accordingly, the Slowinski court dismissed the complaint on preemption grounds.  But the underlying basis for dismissal is the old grow-up, get-real message we learned back in law school. “No reasonable consumer would think that a bottle of water wasn’t a bottle of water because it contained infinitesimally small amounts of microplastics. No reasonable consumer would think that ‘100% Natural Spring Water’ is a guarantee at the molecular level, except that it contains hydrogen and oxygen playing nicely together.”  More to the point, the “likelihood of a reasonable consumer getting stumped is smaller than the size of a piece of microplastic…. No reasonable consumer would get duped by a failure to make a disclosure on the molecular level.”

Slowinski is a clear case of express preemption under the FDCA. The FDCA forbids states from imposing “any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343(g).”  The Slowinski court correctly identifies “identical” as the key word.  Since the FDA does not concern itself with microplastics in its definition, the plaintiffs’ suit necessarily is not “identical” to the FDA’s standard.  

The plaintiffs could not get around the FDA definition by claiming that they challenged only the “100% natural” language in the label.  The FDA imposed no molecular level requirements, so the plaintiffs cannot either.  “The existence of microplastics doesn’t mean that the spring water isn’t spring water.”  The plaintiffs are not allowed to rewrite the FDA’s definition of spring water. 

Even aside from preemption, the plaintiffs simply have not set forth a material misrepresentation. Again, there is no misrepresentation that would confuse a reasonable consumer.  “Reasonable consumers don’t buy bottled water and then look for the nearest microscope.”  And in terms of the need to get real, the court points out that “[i]f the existence of microplastics means that a food item isn’t natural, then the word ‘natural’ can’t apply to any food anywhere.  Food companies couldn’t use the word ‘natural’ for anything.”  Now that might be exactly the plaintiff lawyer’s’ point, but it’s a bad point. 

In addition, the Slowinski court held that the plaintiffs had inadequately set forth any fraudulent intent on the part of the defendant, or that the plaintiffs had suffered “any observable economic consequences.”  Finally, the unjust enrichment claim is “a non-starter” because it is not a separate cause of action under Illinois law.  

So none of the plaintiffs’ claims hold water.  Nevertheless, the Slowinski court gave the plaintiffs a chance to amend their complaint. They get the opportunity to go back to the well. We predict they will come back empty.