No one can argue with that title because Bruno v. Bluetriton Brands, Inc., was most definitely dismissed completely on preemption grounds.  2024 U.S.Dist. LEXIS 98451 (C.D. Cal. May 6, 2024).  In so ruling, the court handed class action plaintiffs a significant defeat on of their latest litigation endeavors:  “microplastics” in water.  It’s not a drug or device case, but it is squarely an FDA preemption case, and that’s good enough to warrant a mention here.

Plaintiffs brought the putative class action alleging that defendant’s label– “100% Mountain Spring Water”—was misleading because during the manufacturing process and/or from the degradation of the plastic bottle, the product also contains microplastics.  Plaintiffs allege ingesting microplastics can cause various health issues.  Id. at *2.    

The FDA has specific regulations governing what products can be sold as “spring water.”  And they focus on where the water comes from and how it is collected.  Plaintiffs were not challenging that defendant’s product was in fact “spring water.”  Their dispute, according to plaintiffs, was with calling it 100% water because the presence of microplastics makes that an untrue statement.  Plaintiffs thought this distinction would put them outside of FDA regulations.  The court disagreed.

First, this is not a case where plaintiffs are alleging that defendant has failed to comply with the FDCA.  Not only are plaintiffs not challenging that defendant’s product is indeed spring water, there is no regulation prohibiting microplastics in spring water.  Plaintiffs cannot, therefore, assert they are pursuing a parallel claim.  Id. at *7. 

Second, challenging the “100%” on defendant’s label is essentially a request that either it be removed or that defendant be required to “more accurately disclose the composition” of its product.  Id.  Either would impose obligations on defendant beyond those imposed by the FDA.  Plaintiffs’ claims would therefore run afoul of the FDCA’s provision that “no state may directly or indirectly establish . . . any requirement for a food which is the subject of a standard of identity established” by the FDCA.  Id. at *5 (quoting 21 U.S.C. §343-1(a)(5)).        

Explicitly expressing skepticism that plaintiffs can replead their case to avoid preemption, the court is giving plaintiffs one more chance to amend.  The court also advised plaintiffs to look at the alternative grounds for dismissal raised by defendants in their motion.  Although not ruled on, the court suggested plaintiff consider any other deficiencies because plaintiffs’ Second Amended Complaint will be 100% their last.  Id. at *9.