A lot of the work I do as a class action lawyer is in the false advertising space. And many of the cases I handle target the food and beverage sector; and are affirmatively bizarre. The problem is that some of the judges who decide these cases fail to apply their common sense and dismiss these specious claims out of hand. 

That is why it was so refreshing to read a recent decision out of the Northern District of Illinois that threw out a proposed class action alleging that a maker of bottled water whose label includes the words “100% Natural Spring Water” was not falsely advertised because it allegedly contained trace amounts of microplastics. “Distilled to its core,” the Judge wrote, “the complaint at hand seeks to impose a ‘no microplastics’ requirement for spring water." The Judge noted the small size of microplastics makes a human hair look like a giant, and it would not be reasonable for the product to be labeled as "99.9999999999%" spring water. "Reasonable consumers don't buy bottled water and then look for the nearest microscope … A reasonable consumer would take a drink, not take the water bottle to the lab for testing."

Because microplastics are ever-present now, the plaintiffs' claims would essentially render any food product ineligible for a labeling as "natural," and the Judge mused that this would create "Katie-bar-the-door" liability for hot dogs. He also noted that the spring water brand was the kind of water in the federal building in which he sits. "Full disclosure: This court does not know if any microplastics went down the judicial hatch," the Judge added.

Despite the Judge's skepticism and outright ridicule of the plaintiffs' complaint, he did give them leave to amend within two weeks. So apparently common sense has its limits. At least when courts evaluate false advertising claims against food and beverage manufacturers.