Plaintiffs argue companies that make and sell bottled water have violated consumer protection statutes by labeling their bottled water as “natural” when the products allegedly contain microplastics.
Class actions involving bottled water is on the rise as attention focuses on chemicals and plastics in food packaging (in particular, PFAS and microplastics). Following studies in 2018 and 2019 and a fresh February 2024 Consumer Reports study, microplastic litigation should be on every consumer packaged goods manufacturer’s radar. While there is no consensus within the scientific community on harm caused by microplastics, the plaintiffs’ bar has chugged its drink and ran straight to the courthouse.
Plaintiffs across the country, with nearly identical allegations (and for some, the same plaintiff), are not bottling it in anymore. They argue companies that make and sell bottled water have engaged in a host of consumer protection statutory violations by labeling their bottled water as “natural” when the products allegedly contain microplastics. So far this year, we have seen five class actions brought against bottled water manufacturers seeking to certify nationwide and state-specific subclasses.
Without scientific consensus on the impact of microplastics, or guidance from the Environmental Protection Agency or FDA on the presence of microplastics (nor the definition of “natural”), defendants are left to draw analogies to other trending litigation, such as PFAS and glyphosate claims, to challenge these claims. In similar litigation, defendants have found some success in arguing that the FDCA preempts migratory substances like PFAS from disclosure as an ingredient. Likewise, courts have recently found that a “natural” claim could not lead a reasonable customer to believe there are no “accidental or innocuous amounts” of glyphosate in a product. These types of challenges could support dismissal as defendants attempt to put a lid on claims in the bottled-water battle.
Of these five cases, plaintiff Dotson voluntarily dismissed both complaints in April. The other cases are in various stages of motion to dismiss briefing. We’ll watch out for future splashes and keep you updated.
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