Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Claims challenging use of ‘Natural‘ on Fiji water bottle labels dismissed for second time, (May 20, 2025)

By Susan L. Smith, JD, MA

Consumers failed to plead sufficient allegations to support claims that that using the term “Natural” on the label of the bottle was misleading because the water allegedly contains microplastics.

The federal district court in Chicago, Illinois granted the request to dismiss the complaint of consumers of a bottled water product brought against the distributor and seller of the bottled water concluding that the consumers failed to provide sufficient allegations to support their assertions that the bottled water contained microplastics. The consumers brought claims under various state consumer protection statutes and common law fraud and unjust enrichment contending that the use of the term “Natural” on the label of Fiji Water bottles sold and distributed by The Wonderful Company, LLC (TWC) is deceptive because the water allegedly contains microplastics. The court dismissed the consumers' first complaint but granted the consumers' request to file a proposed Second Amended Complaint. The court concluded that the Second Amended Complaint failed to plead plausible claims. The court found that a new allegation that the testing established that Fiji bottled water products purchased by consumers contained microplastics does not amount to a plausible allegation of contamination without anything beyond that information. Moreover, engaging an expert to do more testing in the future does not advance the consumers claims over the plausibility line. The court noted that the consumers had three opportunities to plead plausible claims but has not done so, thus, the court dismissed the complaint with prejudice (Daly v. The Wonderful Company, LLC, No. 24 C 1267 (N.D. Ill. May 7, 2025)).

Background. The consumers filed the lawsuit in Illinois state court in January of 2024, but TWC removed the case to federal court and then moved to dismiss the complaint for failure to state a claim in March 2024. TWC argued that the consumers had not adequately alleged the elements of their claims and the claims were preempted by the federal Food, Drug, and Cosmetic Act and were subject to a statutory safe harbor under the Illinois Consumer Fraud and Deceptive Business Practices Act. The consumers sought and obtained leave to file an amended complaint, which was filed on July 31, 2024, and included additional plaintiffs and claims under additional state laws. TWC moved to dismiss the amended complaint presenting similar arguments.

On March 3, 2025, the court granted TWC's motion to dismiss the consumers complaint for failure to state a claim. The consumers alleged that the water in Fiji Water bottles contains microplastics and contended that microplastics from plastic bottles can contaminate the water held in the bottles. The exposure to these substances leads to harmful health effects. The court found that the consumers allegations of mislabeling on TWC’s Fiji Water were conclusory and unsupported and the allegation that Fiji Water was contaminated with microplastics rendering the term "Natural" misleading was insufficient to give rise to a plausible claim for relief. The court concluded that the consumers failed to state a claim that the labels were likely to deceive the reasonable consumer. Although the court found that federal preemption did not bar the lawsuit, the court dismissed the complaint on the basis that it failed to go beyond unsupported allegations but granted the consumers’ request to file a Second Amended Complaint by March 18, 2025 (see FDA standards address bottled water contaminants, but not labeling content (Mar. 5, 2025)).

Allegations in Second Amended Complaint. The allegations in the Second Amended Complaint include a scientific investigation and analysis on Fiji bottled water purchased by consumers to establish whether the water contained microplastics. The investigation established that the Fiji bottled water products purchased contained microplastics despite being labeled Natural Artesian Water. The consumers also retained an expert to perform an independent analysis of Fiji bottled water and provide an expert report during discovery. The court noted that the consumers offered no information about what sort of testing was done, under what conditions, or what its results were other than a generalized statement that Fiji water contained microplastics. The consumers and counsel deemed this information to constitute protectable work product and will not disclose it. Further, the second of the consumers’ new points does not reference any current factual allegations, it simply refers to testing contemplated in the future.

The court pointed out that it had dismissed the previous version of the consumers’ complaint because it did not plausibility allege that Fiji Water actually contains microplastics; instead the earlier version referred only to testing of other brands of water and a study regarding a proposed mechanism for how microplastic contamination can occur after the bottle is sold; but that study did not claim to include Fiji Water bottles.

Court’s analysis. The court found that the consumers' new allegations in the Second Amended Complaint added nothing of substance. First, the consumers’ allegation that an expert will perform testing at some unspecified point in the future may as well not even be in the complaint because it says nothing about the facts as they exist now or as they existed at the time the amended complaint was filed. The court concluded that was not good enough in a situation where the key facts are currently available to the consumers. Further, the allegation that the consumers’ lawyers have tested Fiji Water and found it to contain microplastics without anything more because the information is protected work product, provides no information about when or how the testing was done, including whether the microplastics were present in a concentration that would be considered unsafe or cause the product to be unadulterated. Thus, the court found that the allegation that the testing established that Fiji bottled water products purchased by consumers contained microplastics does not amount to a plausible allegation of contamination given that anything beyond that information is privileged and will not be disclosed. The consumers plan to have an expert do more testing in the future does not advance the claims over the plausibility line.

The court denied the consumers’ motion to leave to file a second amended complaint because they had three opportunities to plead plausible claims but has not done so. Thus, the court concluded that the consumers are not entitled to another opportunity to amend and dismissed the claims with prejudice for failure to state a claim.

The case is No. 24 C 1267.

Judge: Kennelly, M.

Attorneys: David B. Levin (Law Offices of Todd M. Friedman. P.C.) for John Daly, Perry A. Bruno, Jeana Drish, Angie Espinoza and Moussa Kouyate. Johnny Traboulsi (Roll Law Group PC) for The Wonderful Co. LLC.

Companies: The Wonderful Co. LLC

Cases: Advertising IllinoisNews StateUnfairTradePractices