• Court Throws Out Aquafina Purity Lawsuit
  • February 5, 2009
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • A Manhattan federal court has dismissed a class action lawsuit claiming that PepsiCo misrepresented the source of Aquafina water, finding that the claims were preempted by federal regulations.

    The complaint in the consolidated class action argued that PepsiCo misleadingly advertised Aquafina as sourced from a pure mountain stream, when in fact it comes from public water supplies. Plaintiffs contended that the line drawing of an orangey-red sun behind mountains and the slogan "Pure Water-Perfect Taste" on the label implied that the water came from a pure mountain stream. They asserted that Aquafina’s product description as "Purified Drinking Water" was misleading. Plaintiffs also pointed to a statement on the back of the label that read, "BOTTLED AT THE SOURCE P.W.S."—which they claimed stood for "Public Water Supply."

    The complaint alleged unfair and deceptive trade practices in violation of various state consumer protection statutes, unjust enrichment, and violation of the Song-Beverly Consumer Warranty Act.

    In 2007, PepsiCo publicly acknowledged that Aquafina came from public drinking supplies and allegedly agreed to change the label. In its statement, the company said, "If this helps to clarify the fact that the water originates from public sources, then it's a reasonable thing to do."

    PepsiCo made a motion to dismiss the lawsuit, arguing, among other things, that the claims were preempted by the Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 343-1(a)(1).

    In a ruling in early December, U.S. District Judge Cathy Seibel of the Southern District of New York threw out the lawsuit on the grounds of federal preemption. 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," she wrote.

    Seibel said the rule "explicitly exempts purified water from the source disclosure requirement." The rule, she wrote, “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."

    Accordingly, the court found, the claims were barred by federal preemption because first, "federal law is not silent" on the subject and second, Aquafina falls into the purified water exception under the FDCA.