Consumer Law

Finding their claims preempted by the Food Drug and Cosmetic Act (FDCA), the United States District Court for the Southern District of New York dismissed a class action complaint against Pepsico, Inc. over the labeling of its Aquafina bottled water.  The plaintiff class alleged that graphics of a red and orange sun rising over snow-capped mountains and the slogan "Pure Water -- Perfect Taste"  implied that the source of Aquafina was a mountain spring, rather than a municipal water tap.  As a result of this deception, plaintiffs allegedly paid a premium for Aquafina and alleged violations of numerous state laws.

The Aquafina label also contains the statement Purified Drinking Water," and this description, and a lack of understanding or disregard for advertising law on the part of the FDA when it promulgated certain regulations, doomed plaintiffs' complaint.  The FDCA defines "purified water" and Aquafina meets that definition.  The FDCA further provides that no state can impose any requirement for "purified water" that is not identical to that definition.  In promulgating regulations related to bottled water, the FDA recognized that graphics and depictions might mislead consumers if the source is different than the source depicted.  By way of example, the FDA  noted that a "country setting on a label may mislead consumers into believing that the product is spring water when it is not."  Such a depiction according to the FDA would render the product misbranded.  Thus, if bottled water is from a community water system -- tap water -- that fact must be clearly disclosed -- unless the water meets the definition of "purified water."  Given the language of the statute and the FDA's regulatory pronouncements, the District Court found that the plaintiffs' claims were preempted.  Aquafina is purified water and state law could not impose a requirement that Aquafina disclose its source, despite the depictions on the label, because it met the definition of purified water.

The FDA made the determination that it was irrelevant that consumers might be deceived by depictions and statements on the label as long as the water is purified.  This is inconsistent with principles of advertising law which generally finds that express claims, especially those on a product's label or packaging are material to consumers.  A copy of the decision is below.

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