Microplastics allegations “don’t hold water”: Illinois district court tosses claims against BlueTriton Brands

A recent opinion from the Northern District of Illinois may dampen the prospects of plaintiffs seeking to challenge the labeling of bottled water and other beverages based on the alleged presence of microplastics.

In Slowinski v. BlueTriton Brands, Inc., Judge Steven Seeger granted BlueTriton’s motion to dismiss a putative class action alleging that the defendant’s use of the phrase “100% Natural Spring Water” on its Ice Mountain bottled water was misleading because the water allegedly contained microplastics.

The opinion is notable for its thorough analysis of federal preemption and its colorful dissection of the plaintiffs’ case.

Breakdown of the opinion

First, the court held that the plaintiffs’ claims were preempted by the Food Drug and Cosmetic Act (FDCA), which gives the US Food and Drug Administration (FDA) exclusive authority to certain terms, including “spring water.”

The court also held that the plaintiffs failed to allege plausibly that the label would deceive a reasonable consumer, that the defendant acted with the requisite intent to mislead, and that the plaintiffs suffered any actual damages.

“The existence of microplastics doesn’t mean that spring water isn’t spring water. And it doesn’t mean that spring water isn’t natural.”

The court explained that the FDA’s definition of “spring water” says nothing about microplastics.

The court rejected the plaintiffs’ interpretation of “100% Natural” as a guarantee “at the molecular level,” casting the complaint as an attempt to impose a zero-concentration FDA standard for microplastics in spring water without the FDA having imposed such a standard and declining to impose additional requirements based on the plaintiffs’ understanding of state consumer protection laws.

In fact, the opinion recognized that “the FDA allows bottled water to contain small quantities of chemicals, so it is hard to believe that a reasonable consumer would think that” their water bottle is “entirely synthetic-free.”

“What would Plaintiffs have wanted? A label that says 99.999999999% natural spring water? No reasonable consumer thinks this way. It’s a rounding error, to put it mildly.”

A reasonable consumer would not buy bottled water and then look for the nearest microscope. The likelihood of a reasonable consumer being misled by the phrase “100% Natural Spring Water” to think it contained no concentration of microplastic was, the court concluded, immaterial (“smaller than the size of a piece of microplastic”).

“When simply breathing air puts you at risk of inhaling microplastics, it is unreasonable to assume your spring water won’t have any microplastics.”

A key pillar of the court’s ruling was the “inescapable” ubiquity of microplastics. The court held that microplastics have been found throughout the environment, even in the air and the human body.

Suggesting similar cases would also lack merit, the court found that “even the most health-conscious person among us can’t escape the possibility of consuming microplastics.” Thus, the court concluded, no reasonable consumer could have been misled by Ice Mountain labeling.

“[T]he complaint alleges that microplastics enter the water bottle by twisting the cap. If that’s true, then one wonders how Plaintiffs could have purchased water bottles without microplastics at a lower price.”

The opinion also notes that, where microplastics are alleged to have come from twisting the plastic cap off of a bottle, a price premium theory of damages should fail.

As a result, the court dismissed the plaintiffs’ claims with leave to amend, but expressed doubt that an amendment could salvage the case.

Key takeaways

Although not binding precedent in other jurisdictions, the opinion is expected to discourage plaintiffs’ counsel from bringing beverage-based microplastics litigation based on alleged marketing misrepresentations, especially in cases where the plaintiffs rely on a defined FDA term or the use of “natural” or similar words to challenge the labeling of bottled water products.

The opinion suggests that preemption and plausibility hurdles would doom such claims, and that courts may be unsympathetic to plaintiffs who presume to second-guess the requirements or disclosures the FDA has mandated.

This opinion may have broader application when addressing other alleged contaminants because the court held that “no reasonable consumer would get duped by a failure to make a disclosure on the molecular level” and that “no reasonable consumer would expect a disclosure about the presence of microscopic particles.”

Despite this ruling, the science around microplastics risks and detection likely portend more microplastics-based lawsuits in the future.

As the court notes, the impact of microplastics on humans is not fully understood, and some research suggests microplastics may have negative health effects.

Moreover, the case deals with specific marketing representations – “100% Natural Spring Water.” It does not address other claims based on environmental or social responsibility, health benefits, or other marketing terms not regulated by the FDA.

Businesses are encouraged to remain thoughtful about how plaintiffs may use various non-FDA-defined statements to bring similar suits.

DLA Piper has a deeply experienced global plastics and class action practice. We monitor this fast-evolving regulatory landscape at all levels. If your business is part of the plastics lifecycle, we encourage you to contact the authors to discuss how these developments may affect you.