In the wake of a federal judge in Connecticut dismissing a putative class action lawsuit alleging Poland Spring’s water did not come from a natural spring, plaintiffs’ attorneys are vowing the legal fight will continue.
In his Thursday ruling, U.S. District Judge Jeffrey Meyer said he was dismissing the fraud case against Nestle Waters North America Inc., Poland Spring’s parent company, because the claim was pre-empted by federal law.
Meyer said the U.S. Food and Drug Administration has enacted detailed rules and regulations defining spring water under the Food, Drug and Cosmetics Act. The act provides that only the federal government—not private parties—can enforce the violations.
But Meyer said the plaintiff attorneys, who are representing eight northeastern states, including Connecticut, New York and Massachusetts, can sue under state law within 30 days. That is exactly what the attorneys say they plan to do.
Alexander Schmidt, a New Jersey-based solo practitioner, issued a statement on the position of the eight attorneys representing the class. Schmidt said there would be no additional comments on the matter. The statement reads, in part: “The court rejected all of Nestle’s arguments … holding that the plaintiff’s should assert claims based on state law rules governing spring water. We intend to amend our complaint consistent with the ruling. The decision does not address the accuracy of our detailed factual allegations, which we look forward to providing.”
The lawsuit, among other things, claims that “not one drop” of Poland Spring bottled water is from a spring. The suit sought at least $5 million in damages for false advertising, deceptive labeling and breach of contract.
The U.S. Food and Drug Administration says spring water must come from an underground source and flow naturally to the earth’s surface. Spring water, according to the government, doesn’t have to be literally collected from a spring. It can also be pumped out from a hole in the ground.
On the other hand, groundwater, the government says, is water found underground in the cracks and spaces in soil, sand and rock. It is stored in and moved slowly through geologic formations of soil, sand and rocks called aquifers.
Each of the states cited in the lawsuit have language that varies slightly. And that language in many cases mirrors what the federal government says.
According to the Connecticut State Department of Public Health, spring water means “natural water obtained from an underground formation from which water flows naturally to the surface of the earth.” That is the only wording regarding spring water on the state’s site. With regard to bottled water, the state says: “A bottler selling or distributing bottled water obtained from a source located out of state shall submit to the Commissioner of Consumer Protection a copy of a current license or approval for the use of such source from each government entity having jurisdiction to regulate the use of the source.”
Charles Broll, general counsel for Nestle, told the Connecticut Law Tribune Monday he had no comment on the pending amended suit. He referred all other comment to the company’s statement. That statement reiterated the ruling by the judge. In addition, the statement comes with a recently released report in which the legal megafirm DLA Piper Global Law Firm wrote an extensive report stating the company’s bottled water was, in fact, spring water. The company hired DLA Piper to conduct an investigation and write the report.
“While I can’t comment specifically on a potential refiling without seeing it, I can say that the claims made in this lawsuit are without merit,” Broll said. “We will continue to defend ourselves vigorously and are highly confident in our legal position. The judge’s decision to grant our motion to dismiss is proof of that.”
In addition to Schmidt, the other attorneys representing the class are: Craig Raabe and Robert Izard of Izard, Kindall & Raabe in West Hartford; Steven Williams and Alexander Barnett of Cotchett, Pitre & McCarthy in New York City and California; and Steven Sklaver, Amanda Bonn and Oleg Elkhunovich of Susman Godfrey in Los Angeles.