One of the nation’s largest bottled water companies is admitting puffery in a legal move aimed at getting out from under a lawsuit over environmental claims.
Using the specific term “puffery” is a legal maneuver dating back more than a century in England, and BlueTriton Brands is using the word as part of a defense against claims by environmental group Earth Island Institute that the company is greenwashing.
Earth Island of Berkeley, Calif., filed legal action in September in the Civil Division of Superior Court of the District of Columbia claiming deception in marketing regarding sustainability, an alleged violation of the district's Consumer Protection Procedures Act.
Now comes BlueTriton, which was formerly known as Nestle Waters North America until the business was sold last year, with a puffery defense.
BlueTriton said its statements "constitute aspirational or otherwise unquantifiable statements that 'cannot be the basis for a claim for unfair trade practice.'"
"While 'a statement that is quantifiable' or that 'makes a claim as to the specific or absolute characteristics of a product' may amount to actionable misrepresentation, 'a general subjective claim about a product is nonactionable puffery,'" the company said in a recent court filing.
"Given their vagueness and subjectivity, courts have consistently held that aspirational statements or statements of optimism constitute puffery and thus cannot form the basis of consumer fraud claims," the company said.
BlueTriton, which acquired the bottled water business from Nestle in April 2021, includes such well-known national and regional brands as Poland Springs, Ice Mountain, Ozarka, Deer Park, Zephyrhills, Arrowhead and Pure Life.
Earth Island Institute does not seek money from BlueTriton but wants the company's sustainability claims to be proven wrong.
"BlueTriton's marketing is false and deceptive because the company portrays itself as being sustainable and committed to reducing plastic pollution through its recycling targets while falling short of those targets and continuing its environmentally harmful practices," the original lawsuit alleges.
But BlueTriton said the plaintiff's allegations are a "mischaracterization and decontextualization of BlueTriton statements regarding the company's commitment to sustainable practices."
BlueTriton said Earth Island Institute does not challenge the company's product labeling or advertising, but instead uses CPPA to "challenge alleged sustainability representations buried in several of BlueTriton's brand websites."
"In doing so, plaintiff seeks to extend the reach of the CPPA far beyond 'deceptive trade practices' targeted at D.C. consumers, which the statute was intended to address," BlueTriton said in its legal response.
The water company's use of the word 'puffery' is a legal move intended to bring in specific case history about how other courts have ruled.
A 2017 article in Antitrust magazine published by the American Bar Association describes puffing as "the making of advertising claims that are not measurable and of the type upon which consumers would not normally rely."
"Puffery is valuable precisely because it allows marketers to grab the attention of consumers with bold advertising claims that do not require substantiation. A marketer's dream, right? Despite the potential for creating a lasting impression, puffing is not without its dangers," the article states.
Puffery, as a legal defense, was first used in 1893 in England, according to the article by Roger Colaizzi, Chris Crook, Claire Wheeler and Taylor Sachs of the Venable LLP law firm in Washington, D.C.
Earth Island Institute, in a response to BlueTriton's effort to have the case dismissed, said the bottled water company mischaracterized its original compliant. The group also said that there are "multiple findings by D.C. courts holding that similar sustainability claims do not constitute puffery."
"The statements are not harmless puffery, but actionable misrepresentations about the nature of BlueTriton's business practices and services," Earth Island Institute responded.
BlueTriton, in mounting a defense in the company's latest filing, did indicate the company's representation as "a guardian of sustainable resources" and "a company who, at its core, cares about water" is "vague and hyperbolic."