Unquenchable thirst

Last week was the first of the two annual “look back” columns about the oddities of the legal year past. Several of the stories reviewed there had to do with what I termed “Stupid Food Lawsuits,” namely, a woman who sued Kellogg’s because strawberry Pop-tarts do not have mostly strawberry filling, and another against Fritolay about whether its Tostito’s “hint of lime” corn chips really contain “lime” (hint: they don’t).

This year has actually been a good year (or, looked at another way, a bad year) for this kind of frivolity in court. While this next case could have been saved for the second “annual roundup” next month, it really deserves it own treatment as another exemplar of “suing for fun and profit” practices. Specifically, it involved a lawsuit against the Nestlé corporation over a . . . food-adjacent item.

Nestlé (the “accent acute” over the second “e” really is part of its name) is actually a Swiss company. (Hence, the funny accent mark.) It was formed back in 1866, but despite what you might have thought from standing next to the candy rack in the supermarket checkout line, it didn’t start out making chocolate bars. No, Nestlé’s first product was actually canned condensed milk which — given the short shelf-life of actual milk — was successful in the late 19th century. Not for nearly 40 years did Nestlé started manufacturing chocolate (though from what I understand, one of the main ingredients in chocolate is . . . milk).

But in the century-plus since then, Nestlé has become quite the international conglomerate, making hundreds of foodstuffs and buying up many other food companies, too. (After all, great monopolies are made, not born.) Today, it has branched out even into baby food, pet food, and bottled water, among many other products.

Bottled water, especially carbonated water, has become big business, and if you drink Perrier (from France) or Pellegrino (from Italy), then you’re drinking a Nestlé product. But Nestlé also owns Arrowhead Water, which despite appearing to be American, is actually owned by an American subsidiary of Nestlé. And last year a woman named Connie Chong sued Nestlé over the labeling appearing on Arrowhead’s bottles.

As the Ninth Circuit federal appeals court explained in reviewing Ms. Chong’s case, her lawsuit was based on several California consumer protection statutes, including the Unfair Competition Law and something called the False and Misleading Advertising Law. (Only in California, perhaps.)

Ms. Chong alleged that she or any “reasonable consumer” would have been misled by the artistic label on the Arrowhead bottles’ packaging, which she believed represented that the mountain depicted in the drawing meant that Arrowhead Water was “from the springs in the arrowhead mountain.” The appeals court accepted that Chong believed that the mountain on the front of the labels was “Arrowhead Mountain,” but upon reviewing the labels itself, concluded that there was no indication “that the image of the mountain and lake refer to any specific mountain or lake,” but simply were part of the “true statement that Arrowhead Water is comprised entirely of mountain spring water.”

Indeed, the trial court had even noted that “it is unclear whether ‘Arrowhead Mountain’ actually exists.” While there is, of course a “Lake Arrowhead” in San Bernardino County, California there does not appear to be an “Arrowhead Mountain” or the like anywhere near there. Nestlé’s lawyers pointed out, though, that one of the sources of the “mountain spring water” that Arrowhead bottles is Arrowhead Spring in the San Bernardino Mountains.

If you know anything about San Bernardino County, arrowheads are a big deal there. Besides Lake Arrowhead, which is one of the biggest tourist destinations in the County, the County even has a stereotypical arrowhead as a prominent part of its county seal. But if you use The Google to do this important research, the only mountain bearing that name appears to be in Washington State.

Ms. Chong claimed that if she had known that the water didn’t come from “Arrowhead Mountain,” then she wouldn’t have purchased it at all. After all, everyone knows that the purest and most refreshing water comes only from Arrowhead Mountain. Or something like that.

But as the district court had done, the Ninth Circuit concluded that there was nothing misleading about Arrowhead’s bottle labeling. It dismissed the case without ever letting it near a courtroom.

So Nestlé was off the hook — after only spending thousands of dollars in legal fees. And Ms. Chong’s search for water from only the true “arrowhead mountain” — like the Holy Grail — can go on.