A California federal court granted Trader Joe’s motion to dismiss a false advertising lawsuit with regards to Trader Joe’s alkaline water, finding that all but one of plaintiff’s claims were non-actionable puffery, and granting plaintiff leave to amend the single remaining claim. Plaintiff alleged that Trader Joe’s alkaline water product labelling, which included numerous plus symbols and statements such as “ionized to achieve the perfect balance,” “refresh & hydrate,” “our Alkaline Water + Electrolytes is a drink that can satisfy,” and “Trader Joe’s Alkaline Water + Electrolytes is water and then some,” violated, in part, California’s Consumer Legal Remedy Act (“CLRA”), California’s Unfair Competition Law (“UCL”) and California’s False Advertising Law (“FAL”). In dismissing plaintiff’s claims, the court found that almost all of Trader Joe’s product representations were non-actionable, in that they either amounted to puffery – generalized assertion incapable of being proved false or of being reasonably interpreted as a statement of objective fact – or otherwise would not deceive a reasonable consumer. The court held that only Trader Joe’s representation that its alkaline water was 9.5 pH was potentially actionable, however in granting leave to amend this claim, the court held that plaintiff failed to plead its claim with sufficient particularity, finding that plaintiff’s claim is devoid of any basis for the assertion that such representation is false. In a footnote in the court’s order, the court sent a warning to plaintiff’s counsel reminding counsel that Rule 11 sanctions may be appropriate for bringing claims based on unsupported factual contentions.

Takeaway: Companies in the emerging alkaline water market – a market with a lack of data to support the notion that drinking alkaline water confers any benefits – may wish to limit their messaging to puffery.