According to a lawsuit filed by Dana Weiss, Trader Joe’s water with a pH of 9.5 advertises health claims that are not supported by evidence.
The alkaline water is described on the label as, “ionized to achieve the perfect balance to refresh and hydrate” and features “hundreds of plus symbols superimposed on the packaging, a universal sign of gaining health, when in reality the product is no different than drinking any bottled water or tap water,” reads the complaint and it continues. “There is no genuine scientific research and there are no scientifically reliable studies in existence that support the extraordinary claims of Defendant, or that alkaline branded water provides a superior benefit to a consumer.”
Weiss believes that Trader Joe’s marketing and advertising can lead the consumer to believe the alkaline water is superior to other bottled waters. The lawsuit does not state what testing or methodology was used but says the product does not maintain its 9.5 pH and is more acidic than what is represented.
Alkaline water has, in recent years, grown in popularity. Most brands are careful to avoid specific claims about the health benefits of their water. Instead, brands have focused on the fact electrolytes are added that can replace minerals lost through sweat after vigorous exercise, claiming to refresh and hydrate faster and more efficiently than regular water. However, Trader Joe’s is only claiming to “refresh and hydrate,” according to Winston and Strawn partner Ronald Rothstein.
As long as the pH of the water is 9.5, attorneys say that Trader Joe’s has nothing to worry about in the upcoming lawsuit. The allegation that the plus signs are a “universal sign of gaining health” is not supported nor can it be proven.
Currently, the evidence of the health benefits of water that has a higher pH is “suggestive at best,” according to Anthony Almada, the president and CEO of nutritional tech consultancy IMAGINutrition. Each brand of alkaline water is chemically different. Therefore, studies on other brands cannot be effectively quoted.
There is some evidence to indicate alkaline water may help deactivate a digestive enzyme called pepsin which is part of the problem that creates acid reflux. There is also the theory that ionized water made with a machine creates hydrogen gas and, if retained in the bottle, could have affects independent of the pH of the water.
In 2012, a study published in the Annals of Otology, Rhinology & Laryngology indicated that pH 8.8 water denatures pepsin instantly. The water renders the enzyme permanently inactive. Additionally, alkaline water has the capacity to buffer acid. This means that water with a higher pH than 8 can have therapeutic benefits for those with acid reflux disease.
JAMA published a study in 2017 concluded that a wholly dietary approach that combines alkaline water and a Mediterranean-style, plant-based diet could effectively treat Laryngopharyngeal reflux. This treatment is as effective as a proton pump inhibitor. However, the design of the study did not allow researchers to determine whether alkaline water had any independent benefits.
In 2018, the American Journal of Otolaryngology – Head and Neck Medicine and Surgery determined that an anti-reflux diet that combines alkaline water, medications, and behavioral modifications compared favorably with medication and behavioral modification alone for patients who had laryngopharyngeal reflux symptoms. However, it did not isolate alkaline water for independent benefits.
“This is going to be a tough one for plaintiffs to prove… For any non-label claims, they’re going to need to prove which consumer saw and relied on those specific claims,” states Amin Talati Upadhye attorney Ryan Kaiser.
“What’s worse, these don’t appear to be establishment claims, and thus the plaintiff will need to prove that the claims are untrue, not merely that Trader Joe’s doesn’t have substantiation [in cases like this, private plaintiffs must prove Trader Joe’s claims are false; not just that there is a lack of clinical data to support them]. Given the way the challenged claims are presented, I’m not sure how they’re planning to do that, but I’m sure it will be entertaining to watch.”
The allegation with the most potential is the claim that the pH level is not as high as advertised. If it is not true, there will be issues for Trader Joe’s, however, the testing methodology will be key in this lawsuit.
“We’ve seen plaintiff’s attorneys using crude litmus paper testing strips to form their conclusions. If that’s the case here, [the] Plaintiff [is] going to need to get some more sophisticated testing… and hope for the same results.”
The case is Weiss v Trader Joe’s Company 8:18-cv-01130. It was filed in the central district of California by the Lindemann law firm on June 25, 2018.
By Jeanette Smith
Food Navigator-USA: Lawsuit Against Trader Joe's Alkaline Water Puts Burden of Proof on Plaintiff