Several years ago, a consumer sued Trader Joe's, alleging that the company misled consumers about the health benefits of its "Alkaline Water + Electrolytes" product. The plaintiff alleged that Trader Joe's made a number of false claims about the bottled water, such as, "ionized to achieve the perfect balance" and "refresh." The plaintiff argued that the "perfect balance" claim misled her into believing that the product will help her body achieve a perfect pH balance and that the "refresh" claim falsely communicated that the product was a superior source of hydration.

A federal district court in California dismissed the case. Regarding Trader Joe's "ionized to achieve the perfect balance" claim, applying California law, the court held that a reasonable consumer would only understand it to communicate that the water was perfectly balanced, not that it would cause someone's body to be perfectly balanced. Regarding Trade Joe's "refresh" claim, the court held that that this statement -- along with the plus symbols appearing on the bottle -- were mere puffery. The court wrote that "refresh" is "a vague, generalized assertion incapable of being proved false or of being reasonably interpreted as a statement of objective fact."

The plaintiff appealed, and in a recent decision from the 9th Circuit, the court affirmed the dismissal. Here's why.

Noting that the plaintiff's false advertising claims are governed by the "reasonable consumer" standard, the court said that the plaintiff must show that "it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Agreeing with the district court, the 9th Circuit agreed that the plaintiff could not meet its burden of proof. The court wrote, "A reasonable consumer would not interpret any of the challenged representations to suggest either internal pH balancing or superior hydration."

Regarding the "perfect balance" claim in particular, the court wrote, "When considered within the context of the water bottle packaging as a whole, the phrase 'ionized to achieve the perfect balance' clearly refers to the water itself being balanced. No reasonable consumer would interpret that statement to mean that the water itself will balance the consumer's own pH levels." Putting it even more simply, the court said, "a reasonable consumer does not check her common sense at the door of the store."

Regarding Trader Joe's "refresh" claim, the use of plus signs on the bottle, and other similar statements, the 9th Circuit held that those statements, "either constitute true expressions about the hydrating capability of water or are otherwise nonactionable puffery."

Weiss v. Trader Joe's, 2021 WL 816075 (9th Cir. 2021).

"a reasonable consumer does not check her common sense at the door of the store"