A California resident has filed a putative nationwide class action against Austrian and British companies that sell Oxygizer®, a “designer water” product promoted as an athletic performance aid, alleging that increased oxygen content cannot deliver the benefits claimed. Ghazarian v. Oxy Beverages Handelsgelsellschaft mbH, No. 11-8860 (U.S. Dist. Ct., C.D. Cal., filed October 26, 2011). The companies purportedly promote the product with claims that (i) it aids rapid muscle recovery by increasing the level of oxygen in the body, (ii) the glass bottle eliminates or reduces oxygen loss, (iii) it is the only water with a proven positive effect on the body, (iv) the product is patented, (v) it transports oxygen in body cells to regenerate them, (vi) the water strengthens the immune system and improves cardiovascular and respiratory function, and (vii) it helps office workers who are deprived of oxygen in large cities.
According to the plaintiff, each of these claims is false. She cites several studies refuting the claims and notes that the Federal Trade Commission has brought actions against other “oxygen water” companies for deceptive trade practices. The plaintiff alleges that she purchased one bottle of the water and “did not and could not have obtained any of the beneficial effects of the water advertised by the defendants.” Alleging fraud, negligent misrepresentation and unfair trade practices, the plaintiff seeks special, general and punitive damages; attorney’s fees and costs; restitution; and injunctive relief, including requiring the companies to change the product’s name and cease making the alleged misrepresentations.