A nationwide class action lawsuit accusing a bottled water company of misleading customers by selling water allegedly containing microplastics has been dismissed on preemption grounds.

The court’s decision looms large in a new and significant class action battleground – microplastics in water. Plaintiffs have a second chance to file an amended complaint, but it is unclear if the plaintiff, Perry Bruno, will, or has, done so.

The United States District Court for the Central District of California expressed skepticism about an amended complaint.

“Although the Court is skeptical that Plaintiff can amend his allegations to avoid preemption, the Court will grant Plaintiff one more chance to amend his complaint to address the deficiencies discussed in this Order and any other potential deficiencies raised in the Motion,” the court ruled.

The lawsuit, Bruno vs. Bluetriton Brands, Inc., was filed in January in Los Angeles Superior Court, and later moved to federal court. It alleges Bluetriton, manufacturer of Arrowhead bottled water, intentionally misleads customers by labeling its water bottles as “100% Mountain Spring Water.” Plaintiff and customer Perry Bruno claims the product contains microplastics, small plastic particles originating from manufacturing and/or physical degradation of plastics, that leach into the water and expose drinkers to health problems.

The complaint alleged multiple violations of California’s Unfair Competition Law and sought to expand the action to everyone in the United States who purchased the bottled water. Bluetriton moved to dismiss the case, contending the plaintiff’s action is preempted by the Food, Drug and Cosmetic Act (FDCA), which says no state may establish a regulation for a food product that conflicts with the FDCA, and, if state and federal law conflict, federal law takes precedence.

The Food and Drug Administration has specific regulations governing “spring water,” including where the water comes from and how it is collected. While plaintiff did not dispute the bottled water met those regulations, he argued the product was not 100% spring water because of the presence of microplastics.

The court sided with Bluetriton: “Moreover, to the extent Plaintiff argues that Defendant should either remove “100%” from its label due to the presence of microplastics or more accurately disclose the composition of the Product, such a requirement would impose obligations that go beyond those provided in the [*8] FDCA… Plaintiff’s claims therefore violate the FDCA’s express preemption provision.

Just as PFAS litigation has exploded around the country, microplastics cases are on the rise. This ruling is a win, albeit temporary, for defendants in these cases and can be cited when faced with litigation.

Our Medical and Life Sciences Industry Team is closely following this and related microplastics matters. If you have any questions about this or other microplastic cases, please contact Kelly Jones Howell at 212-912-652 and khowell@harrisbeach.com, or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.