NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANA WEISS, No. 19-55841

Plaintiff-Appellant, D.C. No. 8:18-cv-01130-JLS-GJS

v.

TRADER JOE’S MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Josephine Staton, District Judge, Presiding

Submitted February 12, 2021** Pasadena, California

Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.

Dana Weiss appeals from the dismissal of her putative class action lawsuit

challenging Trader Joe’s “Alkaline Water + Electrolytes” water bottles. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal for failure to

state a claim, and we review for abuse of discretion the denial of leave to amend.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We affirm.

1. Trader Joe’s “Alkaline Water + Electrolytes” features various

statements on the bottle, including “ionized to achieve the perfect balance,” “refresh

& hydrate,” and holographic plus signs. Weiss claims that those statements as well

as other similar ones in Trader Joe’s online newsletter misled her into believing that

the water balances her internal bodily pH and provides superior hydration compared

to other beverages.

2. The district court properly dismissed the consumer protection claims.

Claims under the Unfair Competition Law, the False Advertising Law, and the

Consumer Legal Remedies Act are all governed by the reasonable consumer

standard. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Under

the reasonable consumer standard, a plaintiff must show “that it is probable that a

significant portion of the general consuming public or of targeted consumers, acting

reasonably in the circumstances, could be misled” by the challenged statements.

Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Cal. Ct. App. 2003).

We agree with the district court’s well-reasoned analysis of the challenged

statements. A reasonable consumer would not interpret any of the challenged

representations to suggest either internal pH balancing or superior hydration. When

considered within the context of the water bottle packaging as a whole, the phrase

“ionized to achieve the perfect balance” clearly refers to the water itself being

2 balanced. No reasonable consumer would interpret that statement to mean that the

water itself will balance the consumer’s own pH levels. See Freeman v. Time, Inc.,

68 F.3d 285, 290 (9th Cir. 1995) (explaining that product packaging should be

examined in its full context because it would be unreasonable to cherry-pick discrete

statements to prove deception). Simply put, a reasonable consumer does not check

her common sense at the door of the store. The rest of the challenged statements

either constitute true expressions about the hydrating capability of water or are

otherwise nonactionable puffery. See Newcal Indus., Inc. v. Ikon Office Sol., 513

F.3d 1038, 1053 (9th Cir. 2008) (summarizing puffery standard).

3. The district court also properly dismissed the breach of warranty

claims. Although the reasonable consumer standard technically does not apply to

the warranty claims, those claims still require some sort of actionable representation.

Weinstat v. Dentsply Int’l, Inc., 103 Cal. Rptr. 3d 614, 626 (Cal. Ct. App. 2010).

Here, Weiss premises her warranty claims on the exact same representations as her

consumer protection claims. Nothing in the labeling or advertising promises that the

alkaline water will help consumers achieve a perfect balance or provide superior

hydration. Thus, we affirm the district court’s dismissal of the breach of warranty

claims.

4. Finally, the district court did not abuse its discretion in dismissing the

complaint without leave to amend because the complaint here cannot be saved by

3 amendment. “Dismissal without leave to amend is proper if it is clear that the

complaint could not be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d

1042, 1051 (9th Cir. 2008) (citation omitted).

AFFIRMED.

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