Dana Weiss v. Trader Joe’s

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANA WEISS,
Plaintiff-Appellant,
v.
TRADER JOE’S
Defendant-Appellee.
No. 19-55841
D.C. No. 8:18-cv-01130-JLS-GJS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine Staton, District Judge, Presiding
Submitted February 12, 2021**
Pasadena, California
Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.
Dana Weiss appeals from the dismissal of her putative class action lawsuit
challenging Trader Joe’s “Alkaline Water + Electrolytes” water bottles. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal for failure to
state a claim, and we review for abuse of discretion the denial of leave to amend.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
We affirm.
1. Trader Joe’s “Alkaline Water + Electrolytes” features various
statements on the bottle, including “ionized to achieve the perfect balance,” “refresh
& hydrate,” and holographic plus signs. Weiss claims that those statements as well
as other similar ones in Trader Joe’s online newsletter misled her into believing that
the water balances her internal bodily pH and provides superior hydration compared
to other beverages.
2. The district court properly dismissed the consumer protection claims.
Claims under the Unfair Competition Law, the False Advertising Law, and the
Consumer Legal Remedies Act are all governed by the reasonable consumer
standard. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Under
the reasonable consumer standard, a 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” by the challenged statements.
Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Cal. Ct. App. 2003).
We agree with the district court’s well-reasoned analysis of the challenged
statements. A reasonable consumer would not interpret any of the challenged
representations to suggest either internal pH balancing or superior hydration. 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

-- 2 of 4 --

3
balanced. No reasonable consumer would interpret that statement to mean that the
water itself will balance the consumer’s own pH levels. See Freeman v. Time, Inc.,
68 F.3d 285, 290 (9th Cir. 1995) (explaining that product packaging should be
examined in its full context because it would be unreasonable to cherry-pick discrete
statements to prove deception). Simply put, a reasonable consumer does not check
her common sense at the door of the store. The rest of the challenged statements
either constitute true expressions about the hydrating capability of water or are
otherwise nonactionable puffery. See Newcal Indus., Inc. v. Ikon Office Sol., 513
F.3d 1038, 1053 (9th Cir. 2008) (summarizing puffery standard).
3. The district court also properly dismissed the breach of warranty
claims. Although the reasonable consumer standard technically does not apply to
the warranty claims, those claims still require some sort of actionable representation.
Weinstat v. Dentsply Int’l, Inc., 103 Cal. Rptr. 3d 614, 626 (Cal. Ct. App. 2010).
Here, Weiss premises her warranty claims on the exact same representations as her
consumer protection claims. Nothing in the labeling or advertising promises that the
alkaline water will help consumers achieve a perfect balance or provide superior
hydration. Thus, we affirm the district court’s dismissal of the breach of warranty
claims.
4. Finally, the district court did not abuse its discretion in dismissing the
complaint without leave to amend because the complaint here cannot be saved by

-- 3 of 4 --

4
amendment. “Dismissal without leave to amend is proper if it is clear that the
complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d
1042, 1051 (9th Cir. 2008) (citation omitted).
AFFIRMED.

-- 4 of 4 --