Update – November 12, 2019 – Lawsuit Dismissed; Judge Allows Leave to File Amended Complaint
The lawsuit detailed on this page has been dismissed, with U.S. District Judge Susan Illston granting leave for the plaintiff to file an amended complaint.
According to theorder to dismiss the case, the biggest factor that sunk the lawsuit stemmed from the plaintiff’s failure to sufficiently allege that he suffered any concrete and particularized injury, a key component in establishing standing. The order focused on the fact that the plaintiff failed to allege that the mineral spring waterhepurchased from the defendant contained unlawful levels of arsenic, as well as when or where he supposedly boughtPeñafiel water.
In opposition to Keurig Dr. Pepper’s argument, the plaintiff responded that he alleged “allPeñafiel mineral spring water during the class period was contaminated with arsenic” given the water all comes from the same source. Judge Illston, however,didn’t buy it.
“But nowhere in the complaint, including [paragraph 5] to which plaintiff cites, does he make such a straightforward allegation,” the judge wrote. “Further, plaintiff does not specify when or where he allegedly purchased Peñafiel.”
Lastly, Judge Illston tossed the plaintiff’s claim for injunctive relief due to Keurig Dr. Pepper no longer selling Peñafiel water in the United States. The order states that Keurig announced in June 2019 that it was pulling Peñafiel water from the market after finding “violative levels of arsenic.” Whereas the plaintiff attempted to urge the court to not dismiss an injunctive relief claim and “address it later” in the event Keurig Dr. Pepper falsely labels its Peñafiel water in the future, Judge Illston found that “this is precisely the type of hypothetical injury that is fatal to a claim for injunctive relief.”
The plaintiff has until December 6, 2019 to file an amended lawsuit.
A proposed class action filed this week claims defendant Keurig Dr. Pepper, Inc. knowingly sold bottled water under its Peñafiel brand that was contaminated with dangerous levels of arsenic.
Keurig, the case says, may have known since as early as 2013 that its bottled watercontained unlawful levels of the known poison yet continued to sell Peñafiel water anyway. It was only after Consumer Reports exposed the issue in an April 2019 article that Keurig finally admitted to the problem, the lawsuit says.
The case claims consumers who purchased Peñafiel bottled water were deceived by Keurig into paying for a worthless – and potentially dangerous – product and therefore should be given their money back.
Something in the Water
The 18-page case alleges that Peñafiel bottled water, which is manufactured at a plant in Mexico, was found to contain up to 17 parts per billion (ppb) of arsenic, which is 70 percent higher than the legal level of 10 ppb for water-based products.
According to the lawsuit, arsenic is a known poison and can cause serious health problems such as heart damage, lung cancer, bladder cancer, skin cancer, kidney disease, and diabetes.
Which Products Are Affected?
According to the lawsuit, Peñafiel products are all sourced from the same manufacturing plant in Mexico. Therefore, all of the “about 14” varieties of the brand may be affected, the case says.
Did Keurig Know About the Alleged Contamination?
The lawsuit alleges that Keurig may have known as early as 2013 that its Peñafiel water was contaminated with arsenic.
According to the case, a 2013 inspection of New Jersey-based distribution center R.R. Importaciones turned up Peñafiel bottles that showed unlawfully high levels of the poison. An executive for the company apparently said the bottles had been imported for personal use in 2012, yet the case notes that a year later “dozens of bottles” from that same distributor were ordered to be destroyed.
Keurig apparently claims it was unaware of this incident, but according to the lawsuit, “[i]t is difficult to understand how Keurig would not know the destination of bottles it exported to the United States.”
The FDA Warnings
In 2015 and again in May 2018, the FDA published an alert (titled “Detention Without Physical Examination of Bottled Water due to Arsenic ***and Flavored Water Beverages*** Due to Inorganic Arsenic”) in which the agency warned that some imported bottled water and flavored water beverages were found to contain high levels of arsenic. Among the producers listed on the alert’s “Red List” was Peñafiel.
The alert was meant to stop potentially dangerous products from being imported into the United States, the case says, yet even after it was issued, Keurig allegedly continued to sell Peñafiel without warning consumers that it could potentially harm their health.
Consumer Reports Article
In April 2019, Consumer Reports (CR) published an article in which it reported high arsenic levels in some brands of bottled water. Of the 130 brands tested, Peñafiel had the highest levels at 17 ppb, according to the report. Though the federal legal limit for arsenic is 10 ppb, Consumer Reports recommends no higher than 3 ppb, citing current research suggesting that amounts greater than this level “are potentially dangerous to drink over extended periods of time.”
CR says Keurig submitted its own tests to the magazine in March that apparently reported “nondetectable amounts of arsenic” in Peñafiel water. But, according to the article, Keurig retested its products in response to CR’s questions and then reversed its earlier findings, confirming above-legal levels of the substance.
In response to the report, Keurig reportedly told CR that it would suspend bottled water production in its Mexico plant for two weeks in order to “improve filtration at the plant to lower arsenic levels.”
The lawsuit is seeking to order Keurig to stop its allegedly deceptive practice of selling contaminated water and undertake “corrective action.” The case could also compensate consumers for the money they spent on the potentially harmful Peñafiel products.
Note: The lawsuit is looking to cover a proposed class of people who purchased a Peñafiel beverage in California “within the applicable statute(s) of limitations.”
How Do I Join?
You typically don’t have to do anything to join a class action lawsuit. If the case settles, class members should be notified with instructions on how to claim their part of the settlement. You can read more about that process here.