By Joseph Winters | Grist
Is bottled water really “natural” if it’s contaminated with microplastics? A series of lawsuits recently filed against six bottled water brands claim that it’s deceptive to use labels like “100 percent mountain spring water” and “natural spring water” — not because of the water’s provenance, but because it is likely tainted with tiny plastic fragments.
Reasonable consumers, the suits allege, would read those labels and assume bottled water to be totally free of contaminants; if they knew the truth, they might not have bought it. “Plaintiff would not have purchased, and/or would not have paid a price premium” for bottled water had they known it contained “dangerous substances,” reads the lawsuit filed against the bottled water company Poland Spring.
The six lawsuits target the companies that own Arrowhead, Crystal Geyser, Evian, Fiji, Ice Mountain, and Poland Spring. They are variously seeking damages for lost money, wasted time, and “stress, aggravation, frustration, loss of trust, loss of serenity, and loss of confidence in product labeling.”
Experts aren’t sure it’s a winning legal strategy, but it’s a creative new approach for consumers hoping to protect themselves against the ubiquity of microplastics. Research over the past several years has identified these particles — fragments of plastic less than 5 millimeters in diameter — just about everywhere, in nature and in people’s bodies. Studies have linked them to an array of health concerns, including heart disease, reproductive problems, metabolic disorder, and, in one recent landmark study, an increased risk of death from any cause.
Of the six class-action lawsuits, five were filed earlier this year by the law firm of Todd M. Friedman, a consumer protection and employment firm with locations in California, Illinois, Ohio, and Pennsylvania. The sixth was filed by the firm Ahdoot & Wolfson on behalf of a New York City resident.
Each lawsuit uses the same general argument to make its case, beginning with research on the prevalence of microplastics in bottled water. Several of them cite a 2018 study from Orb Media and the State University of New York in Fredonia that found microplastic contamination in 93 percent of bottles tested across 11 brands in nine countries. In half of the brands tested, researchers found more than 1,000 pieces of microplastic per liter. (A standard bottle can hold about half a liter of water.) More recent research has found that typical water bottles have far higher levels: 240,000 particles per liter on average, taking into account smaller fragments known as “nanoplastics.”
The complaints then go on to argue that bottled water contaminated with microplastics cannot be “natural,” as implied by product labels like “natural artisan water” (Fiji), “100 percent natural spring water” (Poland Spring), and “natural spring water” (Evian). The suit against Poland Spring cites a dictionary definition of natural as “existing in or caused by nature; not made or caused by humankind.” That lawsuit and the others also point to the U.S. Food and Drug Administration, which does not strictly regulate the use of the word “natural” but has “a longstanding policy” of considering the term to mean a food is free from synthetic or artificial additives “that would not normally be expected to be in that food.”.
The lawsuit against Arrowhead bottled water, advertised as “100 percent mountain spring water,” argues that it’s the “100 percent” that’s deceptive. “Reasonable consumers do not understand the term ‘100 percent’ to mean ‘99 percent,’ ‘98 percent,’ ‘97 percent,’ or any other percentage except for ‘100 percent,’” the complaint reads. In other words, consumers expect a product that’s labeled as 100 percent water to contain exactly 0 percent microplastics.
Are reasonable consumers really taking labels so literally? Jeff Sovern, a professor of consumer protection law at the University of Maryland, said it’s “plausible” that people would expect bottled water labeled as “natural” to not contain non-natural microplastics, but it’s hard to say without conducting a survey. It will be up to judges to evaluate that argument — if the cases go to trial. One of the lawsuits filed by the firm of Todd M. Friedman against the company that owns Crystal Geyser was withdrawn last month, potentially a sign that the parties reached a settlement.
“A lot of these types of cases get settled,” said Laura Smith, legal director of the nonprofit Truth in Advertising, Inc. This may reflect the strength of the plaintiffs’ arguments, or it could reflect a company’s desire to avoid the expense of going to court.
In response to Grist’s request for comment, Evian — owned by Danone — said it could not comment on active litigation, but that it “denies the allegations and will vigorously defend itself in the lawsuit.”
“Microplastics and nanoplastics are found throughout the environment in our soil, air, and water, and their presence is a complex and evolving area of science,” a spokesperson told Grist, adding that the FDA has not issued regulations for nano- or microplastic particles in food and beverage products.
The companies named in the other lawsuits — BlueTriton Brands Inc., CG Roxane LLC, and The Wonderful Co. LLC — did not respond to requests for comment.
Erica Cirino, a spokesperson for the nonprofit Plastic Pollution Coalition, said the new lawsuits are part of a longstanding effort to hold bottled water companies accountable not only for microplastic contamination, but also for other misleading claims about their products’ purity. A lawsuit against Nestlé in 2017 said its “Pure Life Purified” brand name and labels misrepresented the purity of its water, in violation of the California Legal Remedies Act. That case was dismissed in 2019 for a “failure to allege a cognizable legal theory”; the latest lawsuits’ “natural” claims represent a different tactic.
Perhaps the best-known legal challenges have involved the origin of so-called “spring water.” In 2017, for example, a class-action lawsuit against Nestlé Waters North America, which owned Poland Spring at the time, said the company was fooling customers into buying “ordinary groundwater.” A U.S. district court judge dismissed that suit in 2018 on the grounds that its allegations improperly cited violations of a state law, rather than a federal one. Nestlé settled a similar lawsuit in 2003 for $10 million, though it denied that its practices had been deceptive.
More recent lawsuits have taken aim at bottled water companies’ claims that their products are “carbon neutral,” or that their bottles are “100 percent recyclable.” Only 9 percent of plastics worldwide ever get recycled.
Many of these lawsuits have yet to be evaluated by a judge, although a 2021 complaint against Niagara Bottling over “100 percent recyclable” labels was tossed out by a U.S. district court judge in New York in the following year.
According to Smith, one hurdle for these lawsuits is that they’re only able to cite research on the microplastics’ potential to damage people’s health, rather than actual damages that they’ve suffered from drinking contaminated bottled water. Even if the plaintiffs did have health problems linked to microplastics, these particles are ubiquitous; it would be nearly impossible to isolate the effects from drinking microplastics in bottled water from those of microplastics found everywhere else.
“It’s a wider systemic issue with our entire food and beverage supply,” Cirino said.
Keeping microplastics out of people’s bodies would require a similarly systemic approach, potentially involving government rules and incentives for companies to replace single-use plastics with reusables made from glass and aluminum — as well as an overall reduction in the amount of plastic the world makes. In the meantime, one recent article in The Dieline floated the idea of putting microplastics warning labels on plastic water bottles.
Of course, anyone worried about drinking plastic could turn to tap water, which typically has lower concentrations of microplastics and other contaminants, and is hundreds of times cheaper than water from a plastic bottle. Research suggests that more than 96 percent of the United States’ community water systems meet government standards for potability.
This article originally appeared in Grist here. Republished on Muser Press under a Creative Commons Attribution 4.0 International licence.
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