The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NICHOLAS WHITE, )
)
Plaintiff, )
)
vs. ) Case No. 4:24-CV-1136 SRW
)
WALMART, INC., et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Walmart Inc.’s Motion to Dismiss
(ECF No. 8). The parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). The Court will grant the motion.
I. BACKGROUND
In July 2024, Plaintiff filed this matter in the Circuit Court of St. Louis County alleging
Defendant Walmart, Inc. used false, misleading, and deceptive marketing on their Great Value-
branded purified drinking water sold in 16.9-ounce bottles. Plaintiff filed the suit individually
and on behalf of all others similarly situated and asserted claims for breach of warranty, breach
of implied contract, and unjust enrichment under Missouri law and a claim for violation of the
Missouri Merchandising Practices Act (“MMPA”) and other states’ consumer protection laws.
Defendant removed the matter to this Court and filed the pending motion to dismiss arguing
Plaintiff’s claims fail to state a claim for relief and are preempted by federal law.
The Court accepts the following facts as alleged in the petition as true for the purposes of
deciding the motion to dismiss.
Defendant markets and sells a variety of consumer products, including food and
beverages. One of those products is Defendant’s “Great Value”-branded purified drinking water
sold in 16.9-ounce bottles that state on the label of each bottle and the outside packaging of each
case of bottled water, “Purified Drinking Water With Flavor-Enhancing Minerals.” The cases of
bottled water are sold packaged in various sizes from 12 to 40 bottles per package and the
labeling is uniform across each variety. On the bottom of the package, the ingredients label states
that the bottles are purified water with non-mineral, synthetic chemical additives. Plaintiff is not
asserting that the “purified drinking water” claim is inaccurate. The additives include sodium
bicarbonate which is synthetically produced baking soda.
The United States Department of Health & Human Services, National Institutes of
Health, Office of Dietary Substances defines “mineral” as “[i]n nutrition, an inorganic substance
found in the earth that is required to maintain health.” MedlinePlus, citing the NIH, defines a
“mineral” as “those elements of the earth and in foods that our bodies need to develop and
function normally.” The American Heritage Science Dictionary defines it in two different
manners:
A naturally occurring, solid, inorganic compound having a uniform
composition and a regularly repeating internal structure. Minerals typically have
characteristic hardness and color, or range of colors, by which they can be
recognized. Rocks are made up of minerals.”
A natural substance of commercial value, such as iron ore, coal, or petroleum,
that is obtained by mining, quarrying, or drilling.
The American Heritage Dictionary of the English Language defines a “mineral” as:
1. A naturally occurring, homogenous inorganic solid substance having a
definite chemical composition and characteristic crystalline structure, color, and
hardness.
2. Any of various natural substances, as: (a) an element, such as gold or silver.
(b) an organic derivative, such as coal or petroleum. (c) a substance, such as stone,
sand, salt, or coal, that is extracted or obtained from the ground or water and used
in economic activities. . .
Wikipedia defines “mineral” as “a solid substance with a fairly well-defined chemical
composition and a specific crystal structure that occurs naturally in pure form.” The Collins
COBUILD Advanced Learner’s Dictionary defines it as “a substance such as tin, salt, or sulfur
that is formed naturally in rocks and in the earth.” The Longman Dictionary of Contemporary
English defines mineral in two ways: (1) “a substance that is formed naturally in the earth, such
as coal, salt, stone, or gold” and (2) “a natural substance such as iron that is present in food and
is important for good health.” The Encyclopedia Britannica defines it as “a naturally occurring
homogeneous solid with a definite chemical composition and a highly ordered atomic
arrangement; it is usually formed by inorganic processes.” Encyclopedia Britannica recognizes
that “a mineral, which by definition must be formed through natural processes, is distinct from
the synthetic equivalents produced in the laboratory.”
Sodium bicarbonate, commonly known as baking soda or bicarbonate soda, is a
synthetically produced chemical compound with the formula NaHCO3 that mimics a mineral,
nahcolite. Although sodium bicarbonate can have a crystalline structure, it is a salt composed of
a sodium cation (Na+) and a bicarbonate anion. The International Mineralogical Association, the
organization responsible for defining what is and is not a mineral, has not classified sodium
bicarbonate as a mineral. The IMA’s classification system is widely accepted in the geological
community.
The structure of sodium bicarbonate is dissimilar to minerals, which are typically solid at
room temperature, retaining their crystalline structure. Sodium bicarbonate cannot maintain a
crystalline form and is, instead, considered a salt that easily dissolves in water. While, the
chemical composition of minerals is fixed and cannot be altered without changing the
substance’s identity, sodium bicarbonate can be easily decomposed into its constituent elements.
The physical and chemical properties of sodium bicarbonate do not fit the criteria for minerals,
according to the Nickel-Strunz Classification of Minerals, which does not list it as a mineral.
Sodium bicarbonate is produced through a chemical reaction in a laboratory setting whereas
minerals are generally formed through geological processes such as the cooling of magma or the
precipitation of water.
Sodium bicarbonate is commonly used as a medication to treat multiple disease
pathologies including cardiac arrest and acute acidosis. Because of rapid alkalotic effects,
sodium bicarbonate should never be ingested by persons having underlying metabolic or
respiratory alkalosis. Due to its ability to buffer pH and influence acid-base shifts, sodium
bicarbonate can also influence a multitude of drug-drug interactions, including with antibiotics
and non-steroidal anti-inflammatory drugs. The long-term ingestion of sodium bicarbonate can
have side effects such as metabolic alkalosis, fluid retention, high blood pressure, osteoporosis,
hypokalemia, worsening kidney function, alkalosis-induced respiratory issues, and
gastrointestinal disturbances.
Sodium bicarbonate works the same way as many over-the-counter antacids by reducing
stomach acid and can have gastrointestinal side effects when ingested on a long-term basis.
Experts, such as the Mayo Clinic, recommend that people not use sodium bicarbonate for longer
than two weeks at a time. When used in purified water, sodium bicarbonate imparts a slightly
salty, alkaline-like taste. The average consumer does not know what sodium bicarbonate is.
In addition to sodium bicarbonate, Defendant’s purified water bottles include calcium
chloride. Calcium chloride is used on streets as a de-icing agent and is sprayed on dirt roads to
prevent dust. It is also used as an additive in plastics, fire extinguishers, and fabric softeners. It
has been shown to have a toxic effect on the development and on the cardiac and neuronal
systems of zebrafish embryos. Calcium chloride, which is generally recognized as safe by the
FDA in food, acts as a firming agent and adds electrolytes to beverages, in addition to adding a
salty taste.
As many as 70% of consumers say they’re willing to pay a premium for food products in
the natural, ethical, enhanced, or “less of . . .” categories. Consumers more and more prefer
healthier foods without added synthetic or artificial ingredients. In a consumer survey conducted
in March 2022, 48% of consumers rated chemicals in their top category of food safety concern.
The average consumer spends less than 20 seconds making any individual in-store purchasing
decision.
Plaintiff purchased Great Value’s water bottles due to his belief that the product
contained purified drinking water that was with flavor-enhancing minerals. He made his decision
in reliance on Defendant’s claim that it was purified drinking water with flavor-enhancing
minerals. Plaintiff relied on the product’s front labels that made that claim. He would not have
purchased the product had he known that it included synthetic chemicals including sodium
bicarbonate and calcium chloride.
On multiple occasions over the past year, Plaintiff purchased the product, including on or
around February 16, 2024, when Plaintiff purchased the product from a Walmart on Telegraph
Road, in St. Louis County, Missouri. Plaintiff bought a case of 40 of the 16.9-ounce bottles.
Plaintiff purchased the product for his personal, family, and household use. Plaintiff desires to
and will purchase the product again if formulated to actually be purified drinking water with
flavor-enhancing minerals, but Plaintiff will not be able to rely on Defendant’s labels in the
future, without the requested relief.
II. STANDARD
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief can be granted if it does not plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. A plaintiff need not provide specific facts in support of his
allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), but must include sufficient
factual information to provide the “grounds” on which the claim rests, and “to raise a right to relief
above a speculative level.” Twombly, 550 U.S. at 555 & n.3. See also Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). This obligation requires a plaintiff to plead
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. A complaint “must contain either direct or inferential
allegations respecting all the material elements necessary to sustain recovery under some viable
legal theory.” Id. at 562 (quotation omitted). On a motion to dismiss, the Court accepts as true all
of the factual allegations contained in the complaint and reviews the complaint to determine
whether its allegations show that the pleader is entitled to relief. Id. at 555-56; Fed. R. Civ. P.
8(a)(2).
III. DISCUSSION
Defendant asks the Court to dismiss all of Plaintiff’s claims for two reasons. First,
Defendant argues Plaintiff’s state law claims are preempted by the Federal Food, Drug, and
Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301, et seq. and the Nutritional Labeling and Education
Act (“NLEA”), 21 U.S.C. §§ 343, et seq. Defendant asserts Plaintiff’s claims are expressly
preempted because they impose obligations that would differ from federal law. In the alternative,
Defendant contends the claims are impliedly preempted. Defendant also argues the Court should
dismiss Plaintiff’s claims for failure to state a claim. In response to Defendant’s motion, Plaintiff
voluntarily dismissed all of his claims except for his claim asserting a violation of the MMPA.
After considering the parties’ arguments, the statutes at issue, and the case law, the Court
finds Plaintiff has failed to state a claim under the MMPA. Because Plaintiff has failed to state a
claim, the Court need not address Defendant’s arguments regarding preemption.
The MMPA prohibits the “act, use or employment by any person of any deception, false
pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or
omission of any material fact in connection with the sale or advertisement of any merchandise in
trade or commerce.” Mo. Rev. Stat. § 407.020.1. To state a claim under the MMPA, a plaintiff
must plausibly allege that he: (1) purchased merchandise from the defendant; (2) purchased the
merchandise primarily for personal, family, or household purposes; and (3) suffered an
ascertainable loss of money or property as a result of the defendant's use or employment of a
method, act, or practice declared unlawful under the MMPA. Mo. Rev. Stat. § 407.025.1.
Missouri amended the MMPA in 2020 and added three additional elements that “a person
seeking to recover damages” must establish: (1) “that the person acted as a reasonable consumer
would in light of all circumstances;” (2) “that the method, act, or practice declared unlawful by
section 407.020 would cause a reasonable person to enter into the transaction that resulted in
damages;” and (3) “individual damages with sufficiently definitive and objective evidence to
allow the loss to be calculated with a reasonable degree of certainty.” Mo. Rev. Stat. §
407.025.1(2); Abbott v. Golden Grain Co., 677 F. Supp. 3d 940, 947-48 (E.D. Mo. 2023).
The question of “[w]hether a reasonable consumer would be deceived by a product label
is generally a question of fact that cannot be resolved on a motion to dismiss.” Browning v.
Anheuser-Busch, LLC, 539 F. Supp. 3d 965, 971 (W.D. Mo. 2021) (internal quotation marks
omitted). However, a court may dismiss a MMPA claim if it can “conclude as a matter of law
that members of the public are not likely to be deceived by the product packaging.” Kelly v.
Cape Cod Potato Chip Co., 81 F. Supp. 3d 754, 761 (W.D. Mo. 2015) (internal quotation marks
omitted); see also Mo. Rev. Stat. § 407.025.1 (stating a court may dismiss a MMPA claim as a
matter of law if the claim “fails to show a likelihood that the method, act, or practice alleged to
be unlawful would mislead a reasonable consumer”). The relevant inquiry under the MMPA is
whether the product packaging's “overall appearance” is deceiving. Browning, 539 F. Supp. 3d at
972.
Plaintiff alleges Defendant’s Great Value brand of bottled water has deceptive labeling
because it claims it is purified drinking water with flavor-enhancing minerals when it actually
includes a synthetic chemical, sodium bicarbonate, and a mineral, calcium chloride, that does
more than just enhance the flavor. However, Plaintiff is not challenging that the water is purified,
and he admits the bottled water does contain a mineral and that it does enhance the flavor. If the
water is purified and it does contain at least one flavor-enhancing mineral, then the label is not
deceptive. Plaintiff does not allege that anywhere on the package it states the bottled water only
contains minerals. Furthermore, the ingredient list on the bottom of the package accurately lists
the ingredients.
Several district courts have held that references to ingredients used do not imply those
ingredients are used exclusively. Song v. Champion Petfoods USA, Inc., 27 F.4th 1339, 1344 (8th
Cir. 2022) (citing Weaver v. Champion Petfoods USA, Inc., 3 F.4th 927, 937 (7th Cir. 2021)). In
Song, the Eighth Circuit held that pet food packaging that stated it contained “fresh regional
ingredients” was not misleading because the packaging did not represent that all of the
ingredients were fresh and regional; thus, “a reasonable consumer would know that some of the
ingredients are neither fresh nor regional.” Id. at 1345. Similarly, here, no reasonable consumer
would interpret “purified drinking water with flavor enhancing minerals” to mean only minerals
and nothing else. Nor would a reasonable consumer interpret the phrase to mean that the mineral
in the water has no other purposes besides enhancing flavor or expect a company to list all the
possible other uses of the ingredient on the packaging.
Additionally, “Missouri law recognizes that reasonable consumers do [read and] review
product labels.” Bell v. Annie’s Inc., 673 F. Supp. 3d 993, 999-1000 (E.D. Mo. 2023). The
presence of sodium bicarbonate and calcium chloride in the bottled water was plainly stated on
the ingredients label. For these reasons, Plaintiff’s interpretation of the label is “facially illogical,
implausible, and fanciful,” and dismissal of the claim to the extent that it argues the label is
deceptive for stating it is “purified drinking water with flavor-enhancing minerals” is warranted.
Song, 27 F.4th at 1343.
Plaintiff also asserts the label is deceptive because sodium bicarbonate acts as an artificial
flavor, but that is not disclosed on the label. According to Plaintiff, the FDA’s labeling
guidelines require the product to be labeled, “Artificially Flavored Purified Water” because it
contains sodium bicarbonate. The FDCA states that a product is misbranded if “it bears or
contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears
labeling stating that fact.” 21 U.S.C. § 343(k). The Act allows for the Secretary of Health and
Human Services to promulgate regulations establishing exemptions. Id. The Secretary has done
so, and the regulations exempt from the artificial-flavoring requirement any “incidental additives
that are present in a food at insignificant levels and do not have any technical or functional effect
in that food.” 21 U.S.C. § 101.100(a)(3).
The regulations define “artificial flavor” or “artificial flavoring” to mean “any substance,
the function of which is to impart flavor, which is not derived from a spice, fruit or fruit juice,
vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material,
meat, fish, poultry, eggs, dairy products, or fermentation products thereof.” 21 C.F.R. §
101.22(a)(1). Plaintiff argues sodium bicarbonate is an artificial flavor; thus, the label must
disclose that it is artificially flavored. Defendant asserts that its product falls into the exemption
from the artificial flavor requirements.
Whether Defendant’s product falls into the exemption cannot be resolved by the Court on
a motion to dismiss. However, there is a larger issue with Plaintiff’s claim that requires its
dismissal – Plaintiff fails to sufficiently allege he suffered an ascertainable loss from Defendant
failing to label the product as artificially flavored. To state a claim under the MMPA, a plaintiff
must allege he suffered an “ascertainable loss of money or property.” Mo. Rev. Stat. §
407.025.1(1). Missouri courts have interpreted this element as incorporating the long-standing
“benefit of the bargain” common-law fraud remedy. Vitello v. Natrol, LLC, 50 F.4th 689, 693
(8th Cir. 2022). “The ‘benefit of the bargain’ rule awards a prevailing party the difference
between the value of the product as represented and the actual value of the product as received.”
Id. (quoting Thompson v. Allergan USA, Inc., 993 F. Supp. 2d 1007, 1012 (E.D. Mo. 2014)).
In his petition, Plaintiff alleges he “was damaged in the amount of the difference between
the cost paid for the Product as represented – as one that was ‘With Flavor Enhancing
Minerals,’ and the actual value of the Products to consumers seeking purified water with just
flavor enhancing minerals.” ECF No. 4, at 25 (emphasis in original). This allegation, along with
similar others in the petition, is a conclusory recitation of the element without any particularity.
“Claims alleging deceptive practices under the MMPA sound in fraud and are subject to Rule
9(b)’s heightened pleading standard.” Hennessey v. Gap, Inc., 86 F.4th 823, 827 (8th Cir. 2023);
see also Goldman v. Tapestry, Inc., 501 F. Supp. 3d 662, 669 (E.D. Mo. 2020) (“However,
because Rule 9(b)’s heightened pleading standard applies to MMPA claims, [the plaintiff] must
state her claims with greater particularity to survive this motion to dismiss.”). General
conclusions without particularity are not enough.
No where in his petition does Plaintiff allege what he actually paid for the product. Nor
are there any allegations where the Court, or Defendants, could possibly determine the value of
bottled water that is labeled “artificially flavored” versus bottled water that is not. The sparse
allegations Plaintiff does include concern his claim that the phrase “with flavor enhancing
minerals” is false because it includes non-mineral ingredients, not his claim that the label must
state it includes artificial flavoring. Because Plaintiff fails to sufficiently allege he has suffered
an ascertainable loss, the Court must dismiss his claim under the MMPA.
Accordingly,
IT IS HEREBY ORDERED that Defendant Walmart Inc.’s Motion to Dismiss (ECF
No. 8) is GRANTED. The petition is DISMISSED, without prejudice. The Court will enter a
separate Order of Dismissal.
So Ordered this 22nd day of October, 2024.
UNITED STATES MAGISTRATE JUDGE
1]